Attorney Misconduct, Benchslaps, Divorce Train Wrecks, Kids, Legal Ethics, Practice Pointers, Small Law Firms, Solo Practitioners

How Not To Answer the ‘Order to Show Cause That You Shouldn’t Be Disbarred’

Pop quiz, hotshot. A federal judge issues an order to show cause that you should be “sanctioned for repeated failure to prosecute cases” and “barred from practicing in this District.” What do you do? What do you do?

The correct answer begins with “responding,” obviously. And when you’re in trouble over “failure to prosecute,” maybe that should light a fire under you to respond thoroughly and on time.

Yeah… this guy didn’t. Instead he provided a detailed, if legally irrelevant, explanation of how he was just too busy to worry about responding on time. Think of this as “Prelude to a Benchslap”…

Two weeks ago, Judge Ronald Leighton of the Western District of Washington issued an order to show cause aimed at attorney Robert J. Penfield. Judge Leighton observed that defendants in the case at hand reported that Penfield was entirely MIA on the case, having skipped out on initial disclosures and the 26(f) conference. Judge Leighton also noticed other cases in the district where Penfield followed a similar pattern:

This Court’s cursory review of the CM-ECF filings in this District disclosed two additional cases following the same script: file a case on behalf of a client facing foreclosure, do nothing else, and have the case dismissed for failure to prosecute.

In the aftermath of the housing crisis, attorneys offering a lifeline to victims of foreclosure and then pocketing their cash and walking away is a lucrative — if awful — business model. Judge Leighton had reason, based on the record, to fear that Penfield had taken a stroll down the Dark Side, so he issued the order to show cause threatening to disbar Penfield from the District.

Penfield had one week to respond.

Penfield did not respond by the deadline.

But at least he got close. He only blew the deadline by seven and a half hours:

1. First, I apologize to the Court for this response being 7 and one half hours late. My day yesterday was booked solid from 7 a.m. to 11:30 p.m. with business-related meetings, and I was unable to meet my obligation to find an hour to sit quietly and type this response. Monday the was similar in schedule, as were May 15 – 17. My weekend is my only time with my 5 year old Daughter Paige, since being freshly divorce from her Mother on April 29, 2013, and Saturday and Sunday were booked solid with 5-year-old girl-related things, which is how I keep my heart from exploding from too much work and too little time with my three kids. No disrespect is intended to the Court personally or professionally by this failure.

Oh. Well, if no disrespect was intended, I’m sure Judge Leighton will forgive and forget. Except going on about how every other meeting on your agenda was more pressing than responding to a federal judge is kind of per se disrespect. Never mind that the first paragraph in response to charges that he accepts cases and fails to prosecute is “I had lots of meetings with other/new clients so I couldn’t respond to a looming deadline in a case involving AN EXISTING CLIENT.” He writes this unironically.

Penfield and his daughter while he blew off his professional obligations?

I’d love more color on what constitutes being “booked solid with 5-year-old girl-related things.” I’m assuming tea parties with Polly Prissy Pants. Look, I feel for the guy wanting to devote time to his family. The problem is he also admits that it took him only an hour to draft his response. And let me tell you something about five-year-olds: they do this thing called “go to sleep.” Usually relatively early. Does Penfield expect Judge Leighton to believe that he couldn’t be bothered to take an hour after his daughter went to bed to pen a response that could implicate his very career?

Penfield later explained that he missed the hearing that resulted in this Order to Show Cause because he misjudged his family obligations:

On May 14, 2013, I was asked by my ex-wife the night before to pick up our three children and deliver them to their school, and believed that I could do so and still make it to the hearing. I was wrong. I did attempt to call counsel opposite and advise him that I would be late for the hearing, and my failure to appear was not intentional. I spoke with him shortly after the hearing, and will comply with Your Honor’s case schedule hereafter.

Not to sound jaded, but Alec Baldwin’s speech in Glengarry Glen Ross is relevant here: “Good father? F**k you! Go home and play with your kids. You wanna work here — close!”

It’s not wrong to want to be a good father. It’s actually great. But if your conception of good fathering could jeopardize the trust that clients (who are financially and psychologically depending on you, too) are putting in a lawyer to zealously prosecute their case, then you probably should be cutting back.

And the end of his marriage is unfortunate, but it sounds like he might be better off:

After enduring my ex-wife Jacki’s daily screeching that I should get out of the house and open a public office from the day after we married in 2006, I finally decided to do so on January 1, 2012.

Gratuitously describing the ex-wife to a federal judge as “screeching.” Awesome. All kidding aside, divorce is difficult, but also probably a reason Penfield shouldn’t have taken on 85 clients by himself.

And Penfield does have some complaints of his own. He explains his woes dealing with the independent contractors that he relies upon to prosecute his cases.

As a solo-practice law-firm, it sometimes occurs that checks for independent contractors are paid not on the dates I intend to pay them, which in my case was the 7th and 22nd of each calendar month. On October 7, 2012, I did not have enough cash to pay my contractors, all of whom were laboring under the incorrect impression that they were employees rather than independent contractors, and when I advised them they would be paid on October 9, 2012, I began to receive threatening e-mails and texts from several of them, which of course resulted in their contracts being immediately terminated.

Well they might be a little melodramatic, but again, he admits that he did fail to pay them in a timely fashion basically because he was overworked. You can blame them for their reactions, but admitting that the firm can’t pay its experts is kind of conceding that the Penfield has trouble effectively representing the clients he takes on right now.

That’s why even if Penfield’s narrative is 100% true, he needs to get a grip on his professional obligations and start, at the very least, shipping some clients off to other counsel. Something that Penfield, to his great credit, seems to understand by the end of his response:

With respect to the Court, I do not feel the above shows good cause for my banning from practice in this District, though such a banning might result in a well-deserved rest. This last comment containing no sarcasm whatsoever, but merely a statement of exhausted fact. Your Honor is respectfully requested to utilize the Wisdom of Solomon and considerable Mercy in making this decision.

Whatever the result, let’s hope Penfield takes his own advice and considers some rest.

(Penfield’s response, in all its glory, appears on the next page.)

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