6th Circuit Suspends Lawyer for ‘Careless’ Use of Name

• Semi-retired lawyer let other lawyers sign his name to “one-size-fits-all” briefs for years

• Judge found brief to be “professionally incompetent” and sanctioned lawyer

• Lawyer did not follow court’s order to personally deliver opinion to client and “authorized the filing of an affidavit falsely certifying that he had”

A semi-retired lawyer who let others draft and sign his name to “one-size-fits-all” pleadings will serve a 90-day suspension, the U.S. Court of Appeals for the Sixth Circuit held Mar. 1.

Lawyers transitioning to retirement still need to comply with their ethical obligations. And a lawyer can’t allow a filing to be signed in his name unless he at least reviewed the filing, the opinion makes clear.

In affirming a 90 day suspension, Sixth Circuit Senior Judge David W. McKeague said “[a] lawyer’s good name and professional reputation are his primary stock in trade, an asset to be cultivated and safeguarded throughout his career-even after ceasing the active practice of law.”

“This case presents a sad example of a decent lawyer, who, in the autumn of a successful career, became careless in permitting the use of his name for improper purposes and needlessly brought dishonor on himself, his firm, the profession, and the justice system,” he said.

Chief Judge Gerald Rosen, of the U.S. District Court for the Eastern District of Michigan, referred Richard J. Doud and his law partner, Andrew M. Ferguson, to a three-judge panel for disciplinary proceedings based on social security briefs filed in that court from 2012 to 2015 that were “woefully deficient both as to the quality of the briefs and the management and monitoring of the appeal process on behalf of clients.” The “one-size-fits-all” social security appeals briefs filed under Doud’s name “often had very little to do with the facts of the particular case in which they were filed; and, except in one case, there was no lawyer review of opposing briefs and magistrate judge rulings in the cases.”

On June 23, 2016, the panel suspended Doud for 90 days for his violations of the Michigan Rules of Professional Conduct 5.1 (supervising other lawyers) and 3.3 (candor to tribunal). He appealed.

A three-judge panel of the Sixth Circuit affirmed.

Sign For Me

The panel’s opinion said that Doud was a shareholder in Davidson, Breen, Doud, Steele & Ferguson, P.C. from 1977 until January 1, 2012, when his shareholder buyback agreement took effect. Doud then practiced as much as he wanted and other lawyers in the firm, including shareholders, were unclear about his status with the firm, the court said.

In 2002, new associate Mikel Lupisella was primarily responsible for handling social security cases until his departure in 2011. Lupisella filed his briefs under his own CM/ECF login and password. After he left, Ferguson stepped in to oversee the practice at the administrative level. The panel gave credit to Ferguson’s testimony that he was asked to handle the administrative stage, but not appeals.

“For all intents and purposes, it was legal secretary [Ruth] Wood who ran the Firm’s social security practice after Lupisella’s departure,” the panel said.

The panel said that Wood handled the initial application for benefits and then submitted the denied claim for review by an administrative law judge. If the claim was denied, she then filed an appeal to the SSA Appeals Council. If that was denied and the client wanted to appeal to federal district court, she instructed one of two associates, Aaron Lemmens or Paul McHugh, to prepare a brief. The court said both McHugh and Lemmens prepared briefs without “substantive guidance” from a senior lawyer. After the briefs were filed, the associates thought their work was completed, the panel said.

Wood and another shareholder, Craig Zanot, obtained a CM/ECF login for Doud in December 2011. After Lupisella left, Wood told the associates to file briefs in Doud’s name. The panel said there was never an expectation Doud “would be working on the case.”

Wood monitored the filings but she didn’t tell the attorneys if something was filed in the case. No one reviewed the report and recommendation to decide if objections should be filed, and Wood sent the client a letter about the final decision, which she placed in the file.

Several judges and magistrates sanctioned Doud for his “repeated pattern of derelict performance,” the panel said.

In one matter, a federal district court judge concluded “that Doud had effectively abandoned his client, and submitted work product to the Court that was not only careless, but professionally incompetent,” the panel said. That judge ordered Doud to file a statement under oath that he “personally delivered” to the client the magistrate’s report and recommendation, the court’s order, and a cover letter stating her case was dismissed and she should carefully read the magistrate’s report and district court’s order accepting the magistrate’s recommendation.

Before speaking with Doud, Ferguson told the client he would step in for Doud and sign for him, the panel said. The affidavit submitted by Doud and statement to the client bore signatures “purporting to be Doud’s.” The panel said nothing on the two documents indicated “that they were signed by someone other than Doud or signed with Doud’s permission. Doud confirmed that he had nothing to do with drafting the affidavit, that the signature on the affidavit was not his, and that he did not know whose it was. However, Doud reiterated that he ‘authorized anything that was necessary to clean up the mess.'”

The panel said Doud violated Rule 5.1(b) for failing to supervise the briefs that were filed using his CM/ECF login and for failing to supervise the appeal thereafter. The panel said he also violated Rule 3.3 because filing briefs under his name was a “false statement of material fact,” as he had “no involvement in their preparation.” Doud’s instruction to “Ferguson to ‘draft whatever is necessary’ and sign his name to it” was “aiding and abetting and/or soliciting the submission of a ‘false statement of material fact,'” the panel said.

The panel applied the American Bar Association’s Standards for Imposing Lawyer Sanctions and said Doud should be suspended for 90 days. The panel said Doud knowingly failed to supervise under Rule 5.1 and had “knowing violation[s]” of Rule 3.3. The panel said Doud’s selfish motive “to keep the Firm profitable,” pattern of misconduct, multiple rule violations over a period of years, false statement made during his disciplinary case about when he obtained the CM/ECF login, and substantial experience practicing law were all aggravating factors. Doud’s lack of a prior disciplinary record was the only mitigating factor, the court said.

‘Short Shrift’

The Sixth Circuit said Doud’s arguments on appeal “warrant only short shrift.” Doud objected not to the factual findings, but to the inferences made from them and to the court’s application of standards to those facts. He also objected to the panel’s use of the grievance administrator as prosecutor.

The court said the “panel proceeded with all due deliberateness, thoroughness and fairness.”

“There was no abuse of process or authority by the panel in exercising its inherent power to discipline an officer of the court who purported to appear before it.”

The court also said Doud’s objections to the factual inferences the panel drew, and to its application of the ethical standards, were “meritless” and “disturbingly oblivious to the incriminatory significance of the undisputed facts.”

Judge Deborah L. Cook joined the opinion and Judge Jane Branstetter Stranch joined the result.

Doud was represented by Dinan & Associates, P.C. Sarah C. Lindsey of Detroit, Michigan represented the Michigan Attorney Grievance Administrator.

The case is Doud v. Mich. Attorney Grievance Adm’r, 2018 BL 69671, 6th Cir., 17-1842, 3/1/18. It is not recommended for full-text publication.

To contact the reporter on this story: Mindy L. Rattan in Washington at mrattan@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com