Sargent Karch

National Labor Relations Board - Board Decisions

Jul 22, 1994

314 N.L.R.B. 482 (N.L.R.B. 1994)

482
314 NLRB No. 80
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 102.44 provides, in relevant part, as follows:
(a) Misconduct at any hearing before an administrative law
judge or before the Board shall be ground for summary exclu-
sion from the hearing.
(b) Such misconduct of an aggravated character, when en-
gaged in by an attorney or other representative of a party, shall
be ground for suspension or disbarment by the Board from fur-
ther practice before it after due notice and hearing.
In re Sargent Karch. Case AD–5
July 22, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
The issue in this case is whether Sargent Karch, the
attorney for the Respondent Constituent Member Clubs
in National Football League (NFL), 309 NLRB 78
(1992), committed ‘‘aggravated misconduct’’ war-
ranting suspension under Section 102.44(b) of the
Board’s Rules by giving a copy of the transcript of a
General Counsel witness’ testimony to a prospective
Respondent witness in violation of the administrative
law judge’s sequestration order.1 For the reasons fully
set forth below, we find that Karch’s conduct did in
fact constitute ‘‘aggravated misconduct’’ under Section
102.44(b), and that his conduct warrants a 6-month
suspension from practice before the Board.
I. BACKGROUND
The relevant facts regarding the NFL proceeding are
essentially undisputed. Briefly, the complaint in the
NFL case alleged that the NFL Management Council
and the Constituent Member Clubs of the NFL had
committed various unfair labor practices during the
1987 strike by the NFL’s professional football players.
The hearing in the proceeding opened in Washington,
D.C., on May 9, 1988, before Administrative Law
Judge Benjamin Schlesinger. The Respondents were
separately represented at the hearing, with the Re-
spondent Constituent Member Clubs being represented
by Sargent Karch, a partner in the law firm of Baker
& Hostetler.
The matter of witness sequestration was first raised
at the hearing on June 6, 1988, just prior to counsel
for the General Counsel’s opening statement. The mat-
ter was raised by counsel for the Management Council,
who stated that it was his understanding that counsel
for the General Counsel intended to move for seques-
tration. When counsel for the General Counsel con-
firmed his understanding, counsel for the Management
Counsel requested that an exception be made for med-
ical experts, which Judge Schlesinger granted. There-
after, a discussion ensued about who the party rep-
resentatives would be. At that time, Karch designated
John Johns as the representative for the Constituent
Member Clubs to sit through the hearing, and Joe Bai-
ley for the Dallas Cowboys, which was named as a
Respondent in a separate consolidated case. In addi-
tion, Karch stated that he would like to reserve the
right, after adequate notice to the General Counsel, to
designate an additional representative for each of the
individual clubs as the allegations involving them
arose or were added to the complaint. Counsel for the
General Counsel, however, objected to this, arguing
that Karch was entitled to only one representative at a
time. Judge Schlesinger ruled that he would take up
the issue as to whether more than one representative
could remain in the hearing room when the individual
allegations arose regarding the individual clubs. There-
after, a discussion ensued about whether Johns would
be allowed to talk to the press, in response to which
Judge Schlesinger stated as follows:
You may advise . . . all prospective witnesses
that the reason for the sequestration rule is to per-
mit them when they testify to testify to the best
of their recollection. And they are not to discuss
with anybody else involved in this case, what
their testimony is going to be or the nature or
subject of their testimony. And they are not to ask
other witnesses what are you going to testify to.
And so that is a blanket order from this point for-
ward, that all witnesses who are to testify in this
proceeding are not to discuss their testimony with
any of the other witnesses to the proceeding.
I am not going to prohibit anybody from talk-
ing with the press and saying what they desire.
And I don’t know how I can prevent the wit-
nesses from reading the newspaper, assuming that
there should be publication of the details of testi-
mony. But, I would hope that witnesses would be
prepared to testify to the best of their recollection
without having their testimony at all altered or
swayed by what they hear from others.
Thereafter, on the following day of the hearing, the
issue of sequestration was again raised. The issue was
first raised by counsel for the General Counsel, who
asked that Judge Schlesinger instruct Johns that if he
talked to the media, he do so in a manner that the con-
versation not be overheard by potential witnesses.
Judge Schlesinger granted the request, stating as fol-
lows:
[T]he essential rule that is being applied is to per-
mit witnesses to testify to the best of their recol-
lection and not have their memories either re-
freshed or swayed by what may transpire in this
room. So I would hope that everybody would be
tactful in expressing to anybody what occurs in
this room.
483SARGENT KARCH
2 Thereafter, on May 2, 1989, the sequestration issue was raised
again when counsel for the Management Council, joined by Karch,
requested Judge Schlesinger to ask a NFLPA representative to leave
the hearing room during the testimony of a Respondent witness.
Judge Schlesinger denied the motion, except as to those points where
there was a direct conflict or the witnesses were both allegedly
present at the same events.
3 Judge Schlesinger further noted that Karch was also certainly not
blameless as to Zamberletti, as he should have reasonably anticipated
that Lynn would show the transcript to Zamberletti.
Subsequently, counsel for the Charging Party NFL
Players Association (NFLPA) also raised an issue re-
garding sequestration, asking to replace his party rep-
resentative with another NFLPA agent. Counsel for the
Respondents vigorously objected to this request, with
Karch himself specifically stating that the Respondent
Constituent Member Clubs would ‘‘strongly object if
he’s going to be a possible rebuttal witness that he sits
through and hears all the testimony of all the witnesses
throughout the hearing, it’s the reason for the seques-
tration.’’ Judge Schlesinger, however, granted the re-
quest, noting that there was no present expectation, and
only an outside chance, that the representative would
be testifying.
Thereafter, on June 22, 1988, the issue of sequestra-
tion was raised again in connection with whether coun-
sel for the Management Council had the right to pre-
pare or consult with a witness who was a designated
representative during breaks in that witness’ examina-
tion by counsel for the General Counsel. Judge Schles-
inger initially ruled that he could not, but on June 27,
1988, after a several-day recess, subsequently ruled
that, notwithstanding the sequestration rule, counsel for
the Management Council should have been allowed to
prepare the witness for the remainder of his testimony
during the recess. Accordingly, he granted counsel for
the Management Council a short recess to do so.
Several days later, on June 29, 1988, the complaint
was amended to allege that the Minnesota Vikings,
through its executive vice president and general man-
ager, Mike Lynn, had violated Section 8(a)(1) of the
Act by informing injured defensive end Mark
Mullaney that he had to resign from the Union in order
to obtain physical therapy-treatment at the Vikings’ fa-
cility. In support of this allegation, on October 20,
1988, counsel for the General Counsel called
Mullaney, who was thereafter cross-examined by
Karch. In accordance with the sequestration order, at
the conclusion of Mullaney’s testimony, Judge Schles-
inger told Mullaney not to discuss his testimony with
any other witness.
Thereafter, approximately 5 months later and after a
10-day recess, on Tuesday, March 14, 1989, Karch
called both Lynn and Vikings trainer Fred Zamberletti
to testify regarding the Mullaney allegation. During the
course of their respective cross-examinations, both
Lynn and Zamberletti revealed in response to questions
from counsel for the General Counsel that they had
read the transcript of Mullaney’s testimony prior to
testifying. Lynn testified that he had received the tran-
script from Karch the previous Thursday and had read
it on a plane. Zamberletti testified that he had received
the transcript on Saturday.
On hearing this testimony, counsel for the General
Counsel moved that the testimony of both Lynn and
Zamberletti be struck inasmuch as it appeared Karch
had violated the sequestration rule as to those two wit-
nesses. In response, Karch stated that he had only
given a copy of the transcript to Lynn, and that it was
Lynn who gave it to Zamberletti. Further, Karch stated
that the only reason he gave the transcript to Lynn was
because he was in a meeting with Lynn and had no
other time to work on preparation between that time
and the hearing, and he thought it would be helpful for
Lynn to see adverse testimony. In response, Judge
Schlesinger indicated that he would reserve ruling on
the General Counsel’s motion.2
Thereafter, on March 21, 1991, Judge Schlesinger
issued his decision in the NFL case. In his decision,
Judge Schlesinger found, in agreement with the Gen-
eral Counsel, that Karch had in fact violated his se-
questration order by giving the transcript of
Mullaney’s testimony to Lynn.3 In so finding, he re-
jected Karch’s argument that the sequestration order
was not specific enough to prohibit showing transcripts
of testimony to other witnesses, finding that Karch’s
argument in that regard ‘‘makes a mockery of this pro-
ceeding and his own intelligence.’’ 309 NLRB at 131.
Nevertheless, Judge Schlesinger denied the General
Counsel’s motion to strike Lynn and Zamberletti’s tes-
timony, finding that such a result would unfairly place
the burden of Karch’s conduct on the Vikings, which
he found was innocent of the 8(a)(1) Mullaney allega-
tion. However, noting that Karch had been found to
have violated a sequestration order in a prior case as
well, Seattle Seahawks, 292 NLRB 899, 908 (1989),
enfd. mem. 888 F.2d 125 (2d Cir. 1989), Judge Schles-
inger recommended that the Board order a hearing into
his conduct pursuant to Section 102.44 of the Board’s
Rules and consider whether Karch should be sus-
pended from practice before the Board for a specified
period for his conduct. 309 NLRB at 130–131.
Thereafter, on September 30, 1992, the Board issued
its Decision and Order in NFL in which it affirmed as
modified Judge Schlesinger’s findings with respect to
the alleged unfair labor practices. In addition, the
Board also addressed Judge Schlesinger’s rec-
ommendation regarding Karch’s alleged violation of
the sequestration order in that proceeding. Noting that
Karch had previously been admonished by the Board
in Seattle Seahawks, supra, for violating the judge’s
sequestration order in that case, the Board ordered a
hearing pursuant to Section 102.44 to determine: (1)
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 309 NLRB at 88. The Board’s Order appears in the bound vol-
ume as amended by the Board’s February 3, 1993 Order granting
the General Counsel’s motion for clarification.
5 By motion filed February 9, 1994, the General Counsel moved
that Karch’s cross-exceptions be stricken because they were condi-
tional (i.e., because Karch requested therein that the Board affirm
Judge Pacht’s decision and stated that his cross-exceptions were
being filed solely to preserve his rights in the event the Board re-
versed or modified her decision), and because they lacked the speci-
ficity required by Sec. 102.46(b)(1) of the Board’s Rules. We deny
the General Counsel’s motion. The Board’s practice is to treat condi-
tional cross-exceptions merely as cross-exceptions. See Hyatt on
Union Square, 265 NLRB 612 fn. 1 (1982). Further, although
Karch’s cross-exceptions do not strictly comply with Sec.
102.46(b)(1), we find that they do not warrant striking. See generally
A.J.R. Coating Division Corp., 292 NLRB 148 fn. 1 (1988).
6 In its February 9, 1994 motion to strike, the General Counsel
also moves to strike an addendum attached to Karch’s answering
brief which contains a list of NLRB cases he allegedly handled in
whole or in part between June 1983 and May 1988 and a brief dis-
cussion of his alleged involvement with each case. On February 17,
1994, Karch filed an opposition to the General Counsel’s motion
contending that the Board should take official notice of such evi-
dence or, alternatively, in the event the Board grants the General
Counsel’s motion, that the Board should strike the General Counsel’s
assertions that Karch does not have a substantial NLRB practice. On
March 2, 1994, the General Counsel filed a reply to Karch’s opposi-
tion. We find it unnecessary to address the issues raised by the par-
ties’ contentions in this regard as we find that the size of Karch’s
Agency practice is irrelevant to this proceeding. Although it is true
that the Board mentioned the substantial size of the attorney’s prac-
tice in In the matter of an Attorney, 307 NLRB 913 (1992), it did
so only to explain, in response to the dissent in that case, why it
believed the proposed settlement stipulation in that case should be
approved. The issue here is not whether to approve a settlement of
the misconduct allegations against the attorney, but whether the at-
torney did in fact commit misconduct and whether such misconduct
warrants suspension. On this objective issue, we find the size of
Karch’s NLRB practice irrelevant.
whether Karch violated Judge Schlesinger’s sequestra-
tion order; and (2) whether he should be disciplined
for violation of the sequestration order and, if so, what
discipline should be imposed, up to and including sus-
pension or disbarment.4
Pursuant to the Board’s Order, on February 2, 1993,
a hearing was conducted before Administrative Law
Judge Arline Pacht. Karch testified at the hearing that
he initially interpreted Judge Schlesinger’s sequestra-
tion order as pretty broad and inclusive, but that he
thought later developments watered it down. In par-
ticular, he testified that it was his impression that after
Judge Schlesinger’s ruling on June 27, 1988, counsel
had considerable latitude in preparing witnesses. Karch
acknowledged, however, that he did not similarly pro-
vide transcripts to the 10–15 other witnesses he had
called prior to calling Lynn on March 14, 1989, since
he ‘‘did not think it was the preferred method, that it
was the best method,’’ and because he ‘‘did take the
admonition [in Seattle Seahawks] to heart.’’
With respect to the circumstances in which he gave
the transcript to Lynn, Karch testified that he had in-
tended to prepare Lynn in San Francisco following a
trustees’ meeting for the NFL Retirement Plan which
both Karch and Lynn would be attending during the
recess the week before Lynn was to testify. Knowing
that Lynn would be at the meeting, Karch testified that
he had prepared an outline of questions for Lynn, and
that he took the outline along with his only copy of
the transcript of Mullaney’s testimony with him to San
Francisco. Karch testified that he had not intended to
give the transcript to Lynn, but that, as was his usual
practice in preparing witnesses, he intended to use it
himself in preparing Lynn. When the trustees’ meeting
adjourned on Thursday, however, Karch testified that
Lynn indicated to him that he had to leave right away;
that he was flying out of San Francisco in about an
hour or so. Karch testified that he responded by say-
ing, ‘‘Well, wait a minute Mike, we were going to sit
down and prepare this afternoon,’’ at which point he
pulled out his materials and said, ‘‘What are we going
to do about this?’’ Karch testified that Lynn, who was
not an attorney and did not know about the sequestra-
tion order, responded, ‘‘Well, give me what you got
and I can read it on the plane.’’ Karch testified that
at that point he made a split second decision and gave
Lynn a copy of both the outline and the transcript.
As for his state of mind, Karch testified that he real-
ly did not think about the sequestration order when he
gave the transcript to Lynn since Lynn was the chief
operating officer of the Vikings, one of his clients, and
one of the trustees he answered to as co-counsel of the
NFL Retirement Plan. He acknowledged, however, that
he had never specifically designated Lynn or anyone
else as a party representative for the Vikings case, and
that he never thereafter disclosed to Judge Schlesinger
that either Lynn or Zamberletti had read the transcript
prior to testifying, even though he was aware the day
before the hearing resumed on Tuesday that Lynn had
forwarded Zamberletti a copy of the transcript.
On November 5, 1993, Judge Pacht issued her deci-
sion. Judge Pacht found that Karch did in fact violate
Judge Schlesinger’s sequestration order in NFL by giv-
ing a copy of the transcript of Mullaney’s testimony to
Lynn prior to testifying, and that Karch did so know-
ingly, but that Karch’s knowing violation of that order
did not rise to the level of ‘‘aggravated misconduct’’
warranting suspension under Section 102.44(b). Judge
Pacht recommended instead that the Board formally
censure Karch for his misconduct.
On December 13, 1993, the General Counsel filed
exceptions and a supporting brief, and on January 14,
1994, Karch filed cross-exceptions to Judge Pacht’s
decision.5 Thereafter, on January 24 and February 4,
1994, Karch and the General Counsel, respectively,
filed answering briefs.6 The General Counsel urges the
Board, inter alia, to reverse Judge Pacht’s finding that
Karch’s knowing violation did not constitute ‘‘aggra-
vated misconduct’’ under Section 102.44(b), and re-
485SARGENT KARCH
7 Although the General Counsel requested a 2-year suspension be-
fore Judge Pacht, the General Counsel only requests a 1-year suspen-
sion in the exceptions to her decision.
8 As indicated supra, notwithstanding these exceptions, Karch ulti-
mately requests in both his cross-exceptions and answering brief that
the Board adopt Judge Pacht’s decision and recommended Order in
their entirety inasmuch as he is prepared to submit to a formal rep-
rimand. Nevertheless, as discussed supra, we have fully considered
the issues raised by his exceptions.
9 See Seattle Seahawks, supra, 292 NLRB at 907; Miller v. Uni-
versal City Studios, 650 F.2d 1365, 1373 (5th Cir. 1981); and Weeks
Dredging & Contracting, 11 Cl.Ct. 37, 48–53 (1986). See also El
Mundo Corp., 301 NLRB 351 (1991); and Sunland Construction
Co., 311 NLRB 685, 688–689 (1993). In this regard, we find it un-
necessary to pass on Karch’s contention that it was improper for
Judge Schlesinger’s sequestration order in the NFL case to have pre-
cluded him from showing prospective witnesses transcripts of testi-
mony by the opposing party’s witnesses. That issue, in our view, is
not raised by this disciplinary proceeding. As found above, the fact
is that Judge Schlesinger’s blanket sequestration order in NFL as un-
derstood by all counsel did prohibit such conduct, and that Karch
knowingly violated that order. Further, although Karch made clear
in his testimony at the disciplinary hearing that he does not believe
there should be such a prohibition on counsel, there is no indication
in the record that he ever timely objected to the scope of the seques-
tration order during the NFL proceeding. Finally, even if he had so
objected, in our view that objection would not have justified or priv-
ileged his subsequent violation of the order. See generally Maness
v. Meyers, 419 U.S. 449, 458–460 (1975).
quests that the Board issue an order suspending Karch
for 1 year for his misconduct,7 in addition to any other
remedies which the Board concludes are just and prop-
er. Karch, on the other hand, takes exception to Judge
Pacht’s finding that he violated the sequestration order
in NFL, to her finding that he did so knowingly, and
to her recommendation that he be formally censured.8
The Board has considered the exceptions in light of
the record and briefs. For the reasons fully set forth
below, we have decided to adopt Judge Pacht’s finding
that Karch knowingly violated Judge Schlesinger’s se-
questration order in NFL when he gave a copy of the
transcript of Mullaney’s testimony to Lynn prior to tes-
tifying, but to reverse her finding that his knowing vio-
lation of the sequestration order in this regard did not
constitute ‘‘aggravated misconduct’’ warranting sus-
pension under Section 102.44(b).
II. ANALYSIS AND CONCLUSIONS
A. Whether Karch Knowingly Violated NFL
Sequestration Order
In finding that Karch knowingly violated the seques-
tration order in NFL, Judge Pacht, like Judge Schles-
inger before her, rejected Karch’s argument that the
order did not specifically prohibit the conduct at issue.
Further, noting that Karch and his fellow counsel had
actually invoked the sequestration order to their own
advantage on more than one occasion, Judge Pacht
found that it was also unlikely that Karch was uncer-
tain about the scope of the order. Finally, noting that
Karch acknowledged that he had taken the admonition
in Seattle Seahawks to heart and had not provided tran-
scripts to his other witnesses, Judge Pacht found that
this essentially represented an admission by Karch that
he had circumvented the sequestration order with re-
spect to Lynn.
We find no basis to reverse Judge Pacht’s findings
in this regard. In agreement with Judge Pacht (and
Judge Schlesinger), we find that the sequestration order
in NFL was sufficiently broad to prohibit all prospec-
tive nonexpert witnesses from either hearing or reading
the testimony of other witnesses, including opposing
witnesses,9 and that Karch understood this when he
gave a copy of the transcript of Mullaney’s testimony
to Lynn.
B. Whether Karch’s Knowing Violation of NFL
Sequestration Order Warrants Suspension
As indicated, although finding that Karch knowingly
violated the sequestration order in NFL, Judge Pacht
ultimately concluded that that violation did not con-
stitute ‘‘aggravated misconduct’’ warranting suspen-
sion under Section 102.44(b). Judge Pacht cited essen-
tially five reasons for this conclusion: (1) Karch’s prior
infraction in Seattle Seahawks could not be regarded as
a prior disciplinary offense; (2) the Board’s Rules fail
to provide guidance either with respect to what is ‘‘ag-
gravated misconduct’’ or with respect to the extent of
discipline for improper conduct; (3) the Board in prior
cases involving similar or even worse sequestration
violations apparently did not even consider sanctioning
the offending attorneys; (4) the evidence in the instant
case indicates that Karch acted on the spur of the mo-
ment and there is no evidence that he actually intended
or planned to circumvent the sequestration order; and
(5) no one was prejudiced by Karch’s misconduct. We
address each of these reasons below.
(1) Karch’s prior infraction was not a prior discipli-
nary offense. Although acknowledging that the Board
formally admonished Karch in Seattle Seahawks for
violating the sequestration order in that case, Judge
Pacht found that that admonishment constituted only a
‘‘mild rebuke’’ and ‘‘modest word of caution’’ given
the Board’s findings that Karch’s violation of the order
was neither knowing nor prejudicial and the Board’s
failure to specifically condemn his actions as mis-
conduct under Section 102.44. Accordingly, Judge
Pacht concluded that Karch’s infraction in that case
could not be regarded as a prior disciplinary offense.
The General Counsel excepts to Judge Pacht’s conclu-
sions in this regard, contending that they constitute a
misreading of the Seattle Seahawks decision.
We agree with the General Counsel. In Seattle
Seahawks, the General Counsel and the Charging Party
moved that the testimony of three of the Respondent’s
witnesses be stricken because Karch had mailed the
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 As the Board’s admonition of Karch in Seattle Seahawks was
expressed as a ‘‘formal admonition’’ and was published, we find that
it was in effect a ‘‘reprimand’’ as that term is generally defined.
Compare secs. 2.5 and 2.6 of American Bar Association Standards
for Imposing Lawyer Sanctions (ABA Standards), Lawyer’s Guide
for Professional Conduct (ABA/BNA) 01:812 (1992). See also
Black’s Law Dictionary 1302 (6th ed. 1990). Although the Board
has not adopted the ABA Standards, we find that they are a helpful
guide in resolving the specific issues presented in this case.
11 See ABA Standards, sec. 6.23, supra at 01:833.
12 Id.
13 See 292 NLRB at 908. See also El Mundo Corp., supra, 301
NLRB at 351–352 and 357–358.
14 See ABA Standards, sec. 2.5, supra at 01:812; and Black’s Law
Dictionary 48–49 and 1302 (6th ed. 1990) (formal admonition or
reprimand declares conduct improper and cautions offender that rep-
etition of offense will result in more severe discipline).
entire transcript of the first portion of the recessed
hearing, which included testimony from several Gen-
eral Counsel witnesses and one Respondent witness, to
the three prospective Respondent witnesses prior to the
hearing’s resumption in violation of the administrative
law judge’s sequestration order. In a decision dated
November 23, 1983, the administrative law judge (Ber-
nard Ries), like Judge Schlesinger in the subsequent
NFL case, found that Karch had in fact violated his
blanket sequestration order by making the transcript
available to the witnesses. Nevertheless, like Judge
Schlesinger, he denied the motion to strike. Judge Ries
found that excluding the witnesses’ testimony was un-
warranted given that Karch was beset by a demanding
personal problem during the trial, that Karch had sent
the transcripts to the witnesses solely as an expedient
method of trial preparation, and that he did not believe
Karch had consciously and knowingly circumvented
the order. Instead, Judge Ries found that ‘‘a formal ad-
monition to counsel is a sufficient sanction.’’ 292
NLRB at 908. Thereafter, in its February 8, 1989 De-
cision and Order, the Board affirmed Judge Ries’ fore-
going findings and formal admonition of Karch with-
out comment.
Contrary to Judge Pacht, we fail to see how the
above-described formal admonition of Karch in Seattle
Seahawks could be read other than as a prior discipli-
nary action against him. Although it is true, as indi-
cated above, that the Board found that Karch’s viola-
tion of the sequestration order in that case was neg-
ligent as opposed to knowing and/or intentional, this
does not mean that the formal admonition was some-
thing less than what it appeared or that the violation
did not constitute a disciplinary offense. Indeed, a for-
mal admonition or reprimand10 is generally considered
the appropriate discipline for the negligent violation of
an order or rule.11
Nor is it significant that the Board in Seattle
Seahawks found no prejudice resulting from Karch’s
negligent violation in that case. A formal admonition
or reprimand is generally appropriate not only where
there is actual injury to a party or interference with the
proceeding, but also where there is potential injury or
interference.12 That sequestration-rule violations pose a
threat to the integrity of the administrative process is
obvious and, indeed, was specifically noted by the
Board in formally admonishing Karch in the Seattle
Seahawks case.13
Finally, although it is also true that the Board failed
to specifically cite Section 102.44 of its Rules in for-
mally admonishing Karch in Seattle Seahawks, this is
also insignificant or irrelevant in our view. The Board
does not issue two kinds of formal admonitions, one
kind under Section 102.44 and one kind not under Sec-
tion 102.44, with only the former constituting dis-
cipline. Any sanction issued by the Board against an
attorney or representative, be it an admonition, rep-
rimand, suspension, disbarment, or some variation
thereof, is clearly a disciplinary action against that at-
torney or representative, and this is so regardless of
whether the Board specifically cites Section 102.44 (or
its equivalent in representation cases, Section 102.66).
Accordingly, as the Board in Seattle Seahawks did
in fact discipline Karch for his violation of the seques-
tration order in that case, contrary to Judge Pacht, we
conclude that Karch’s violation in that case does con-
stitute a prior disciplinary offense.
(2) The Board’s rules fail to provide guidance. In
her decision, Judge Pacht also expressed concern,
quoting from In the Matter of an Attorney, supra, 307
NLRB at 913, that ‘‘the Board does not now have any
rules concerning attorney misconduct at hearings
which would place an attorney on notice concerning
the extent of disciplinary action for inappropriate con-
duct,’’ and that such rules are also absent which would
offer guidance as to the meaning of ‘‘aggravated.’’ In
Judge Pacht’s view, the absence of such rules raises
serious questions about finding that Karch’s violation
of the sequestration order in NFL constituted ‘‘aggra-
vated’’ misconduct warranting suspension under Sec-
tion 102.44(b).
We find Judge Pacht’s concerns in this regard mis-
placed. The situation here is entirely different from In
the Matter of an Attorney. In that case, which involved
an attorney who used profanity and addressed the op-
posing counsel and witness in a rude, vulgar, and/or
profane manner during a representation hearing, the
Board specifically noted that there had been no prior
disciplinary proceedings against the attorney. Here, in
contrast, as discussed above, Karch had already been
formally admonished in Seattle Seahawks for commit-
ting a similar sequestration-rule violation. By its very
nature, that formal admonition itself declared the con-
duct improper and cautioned or warned Karch that re-
peating the offense would result in more severe dis-
cipline.14 Moreover, as discussed above, it also con-
487SARGENT KARCH
15 See ABA Standards, sec. 9.22, supra at 01:838 (prior discipli-
nary offense constitutes ‘‘aggravating’’ factor justifying increase in
discipline).
16 In so finding, we do not mean to suggest or imply that suspen-
sion would never be appropriate in the absence of a prior formal ad-
monition or reprimand. Indeed, we note that, notwithstanding the ab-
sence of any prior disciplinary proceedings against the attorney in
In re an Attorney, the stipulated order in that case did in fact sus-
pend the attorney for a significant period. See also Roy T. Rhodes,
152 NLRB 912 (1965) (attorneys who obtained General Counsel’s
file at unfair labor practice hearing, and who retained, photocopied,
and sought to introduce contents of file into evidence at hearing,
given 6-month suspension notwithstanding that the record did not re-
veal any previous disciplinary proceedings against them).
17 The two cases specifically cited by Judge Pacht were El Mundo
Corp., supra; and Uarco Inc., 286 NLRB 55 (1987).
18 See ABA Standards, sec. 6.21, supra at 01:832. Cf. Kings Har-
bor Health Care, 239 NLRB 679 (1978) (attorney who pled guilty
in a criminal proceeding to subornation of perjury in unfair labor
practice proceeding disbarred by Board).
19 See ABA Standards, sec. 6.22, supra at 01:832.
20 Id.
21 The General Counsel excepts to Judge Pacht’s findings in this
regard, noting that Judge Schlesinger only concluded that one por-
tion of Lynn’s testimony was not affected by Karch’s conduct.
Moreover, we note that Zamberletti also read the transcript prior to
testifying, and, although he received it from Lynn rather than from
Karch, as indicated by Judge Schlesinger, Karch is certainly not
blameless in this regard since he was the one who initially gave the
transcript to Lynn. In any event, for the reasons set forth above, we
find it unnecessary to decide whether any party was actually preju-
diced as a result of the sequestration violation.
22 See ABA Standards, sec. 6.22, supra at 01:832.
stituted a prior disciplinary action against Karch, and
it is well recognized that such prior disciplinary of-
fenses constitute an ‘‘aggravating’’ factor justifying an
increase in discipline.15
Accordingly, as the Board’s formal admonition in
Seattle Seahawks itself specifically declared Karch’s
conduct improper and warned him that further such
misconduct would result in more severe discipline,
contrary to Judge Pacht, we find it of no consequence
that the Board’s Rules do not also do so.16
(3) The Board in prior cases has not even consid-
ered sanctioning the offending attorneys. Judge Pacht
also expressed concern in her decision that the Board
in prior cases involving similar or even worse seques-
tration violations had apparently not even considered
sanctioning the offending attorneys.17 Judge Pacht stat-
ed that, without clear guidance from the Board, she
was reluctant in such circumstances to issue a ‘‘draco-
nian’’ order suspending Karch for his less offensive
conduct in NFL.
Again, we find Judge Pacht’s concerns in this regard
misplaced. As discussed above, there was in fact clear
guidance from the Board here in the form of its prior
formal admonition in Seattle Seahawks. Further, the
existence of such a prior reprimand clearly distin-
guishes the instant case from those prior cases in
which other attorneys have committed sequestration
violations. Although the sequestration violations in
those cases may have been more offensive, they were
not committed in the face of a direct and explicit for-
mal admonition from the Board. In short, it is Karch’s
failure to heed the Board’s formal admonition in Se-
attle Seahawks, as much as his actual violation of the
NFL sequestration order, that justifies more severe dis-
cipline.
Accordingly, contrary to Judge Pacht, we find that
such prior cases are clearly distinguishable, and do not
preclude the issuance of a suspension order against
Karch.
(4) Karch’s violation was not intentional. Although
finding that Karch knowingly violated the sequestra-
tion order in NFL when he gave a copy of the tran-
script to Lynn, Judge Pacht found that there was no
evidence that Karch had actually intended or planned
to circumvent the sequestration order. Rather, Judge
Pacht found that it was only when Lynn indicated that
he would not be available for Karch to otherwise pre-
pare him for trial that Karch succumbed and, on the
spur of the moment, gave a copy of the transcript to
Lynn.
Although we adopt Judge Pacht’s findings in this re-
gard, we disagree with her conclusion therefrom that
this is yet another basis for finding that Karch’s con-
duct was not ‘‘aggravated misconduct’’ warranting
suspension under Section 102.44(b). Although a find-
ing of intent to injure a party or interfere with a pro-
ceeding may be a prerequisite for disbarring an attor-
ney,18 it is generally not considered a prerequisite for
suspension.19 Rather, all that is generally required for
suspension is a finding that the attorney acted know-
ingly20—a finding which, as indicated, has been made
here.
Accordingly, contrary to Judge Pacht, we find that
the absence of any premeditation or intent by Karch
also does not preclude a finding that his conduct war-
rants suspension.
(5) No party suffered prejudice. In support of her
conclusion that Karch’s sequestration violation in NFL
did not rise to the level of ‘‘aggravated misconduct’’
under Section 102.44, Judge Pacht finally noted that
Judge Schlesinger had concluded in that case that
Lynn’s testimony was not tainted by having read the
transcript, and thus no one was prejudiced by Karch’s
violation.
Assuming arguendo that Judge Pacht’s findings are
correct in this regard,21 we nevertheless disagree with
her conclusion that the absence of such prejudice pre-
cludes suspension. As with formal admonitions or rep-
rimands, suspension is generally appropriate not only
where there is actual injury to a party or interference
with the proceeding, but also where there is potential
injury or interference.22 And as indicated above, such
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 As indicated above, Karch testified at the disciplinary hearing
that he knew, prior to the time that Zamberletti took the witness
stand in NFL, that Lynn had sent a copy of the transcript to
Zamberletti, but that he nevertheless did not disclose to Judge
Schlesinger that either Lynn or Zamberletti had read the transcript
prior to the time they took the witness stand.
24 Karch offered the following apology on redirect examination
near the close of the disciplinary hearing:
Well, I’m sorry this whole thing happened. If I had known all
this was going to come of it, I would have told Mike Lynn to
go get his airplane and forget about it. I am sorry I did it. What
more can I say? I apologize for creating this whole situation. 25 Cf. Roy T. Rhodes, supra.
violations clearly do pose a threat to the administrative
process.
Accordingly, contrary to Judge Pacht, we find that
the absence of actual prejudice also does not preclude
a finding that Karch’s conduct warrants suspension.
Having thus determined that suspension is not pre-
cluded by the various factors cited by Judge Pacht, the
question remains, however, whether suspension is in
fact the appropriate disciplinary sanction for Karch’s
conduct. We conclude that it is. As indicated above,
Karch’s sequestration violation in NFL was his second
such violation, was committed knowingly in the face
of a prior formal admonition from the Board in Seattle
Seahawks, and posed a significant threat to the integ-
rity of the administrative process.
Moreover, there are no mitigating circumstances
here which would justify foregoing such a progres-
sively stronger sanction against Karch. As noted by
Judge Pacht, Karch is an experienced attorney and his
violation in NFL cannot be rationalized as in Seattle
Seahawks. Nor did Karch timely acknowledge the vio-
lation to the General Counsel or Judge Schlesinger;23
rather, as indicated above the violation was only re-
vealed on the General Counsel’s cross-examination of
the witnesses. Finally, although Karch has somewhat
belatedly offered an apology for his conduct,24 we are
not persuaded that, under the circumstances, another
reprimand would be enough to deter such misconduct
in the future or protect the integrity of the administra-
tive process.
Accordingly, for all the foregoing reasons, we find
that Karch’s violation of the sequestration order in
NFL did in fact constitute ‘‘aggravated misconduct’’
warranting suspension under Section 102.44(b) of the
Board’s Rules. Under all the circumstances, however,
we believe that a 6-month suspension, rather than the
full 1-year suspension requested by the General Coun-
sel, is sufficient and appropriate.25
ORDER
The National Labor Relations Board orders that At-
torney Sargent Karch be suspended from appearing or
otherwise practicing before the Agency as counsel or
representative for a period of 6 months from the date
of this Order.
MEMBER COHEN, concurring.
I agree with the result reached by my colleagues.
However, I wish to emphasize that I do not pass on
the appropriateness of the interpretation of the seques-
tration order as applied herein. Rather, I rely solely on
the facts that: (1) Karch knew of the Board’s interpre-
tation of the sequestration order, having been admon-
ished previously for a breach thereof; and (2) Karch
then proceeded to disobey the order a second time. In
these circumstances, even if the order, as applied, were
improper, Karch was not free to ignore it.
Although, as noted, I do not pass on the appropriate-
ness of the order as applied herein, I nonetheless wish
to note several problems with the order as interpreted.
First, there is a substantial question as to whether a se-
questration order is properly applied to a witness who
will testify in opposition to a prior witness. Second,
assuming arguendo that the order would apply in such
circumstances, the Board must be careful that such ap-
plication does not unreasonably interfere with coun-
sel’s preparation of that opposition witness. This factor
is all the more critical where, as here, the tribunal is
operating without prehearing discovery procedures.
Third, the Board must assure that, whatever the order,
its precise context and parameters are clearly and un-
ambiguously conveyed to all concerned. Finally, in
fashioning such rules for the future, I believe that the
Board should consider the views of those who practice
before it.