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In re Complaint as to the Conduct of Eadie12/6/2001
riate if this proceeding involved only the accused's incompetence.
3. Ex parte contact
The accused violated his duties as a lawyer by engaging in ex parte communications with a judge in the Cassady matter. ABA Standard 6.3. We find the accused's mental state in filing the written disqualification motion without serving opposing counsel to be negligent, as he misunderstood his legal obligation to do so. In failing to serve opposing counsel with the disqualification motion, the accused caused actual injury .
Opposing counsel arrived to argue the motion to compel, only to discover that the accused had succeeded in disqualifying the judge who was assigned to hear the motion and delaying the hearing.
ABA Standard 6.33 provides that reprimand generally is appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party. Standing alone, the accused's misconduct regarding his ex parte contact would merit a reprimand.
4. Trial misconduct
The accused abused the legal process by repeatedly raising the issue of Huber's insurance to the jury during the Cassady trial. ABA Standard 6.2. As we have explained, we find that the accused acted intentionally. Injecting the existence of Huber's insurance at trial caused potential injury , because the threat of a mistrial hung over the proceedings after the accused mentioned insurance. The trial judge testified that he would have granted a mistrial if the defense had moved for one.
ABA Standard 6.21 provides that disbarrment generally is appropriate when a lawyer knowingly violates a rule with the intent to obtain a benefit for the lawyer or another and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding.
It appears that, in raising the issue of Huber's insurance in the Cassady trial, the accused intended to obtain a benefit for Cassady, namely, assuring the jury that it could award Cassady damages without harming Huber. The ABA Standards indicate that disbarrment is the appropriate sanction for the accused's misconduct in intentionally and persistently attempting to interject the fact of Huber's insurance at trial.
In summary, the ABA Standards point to disbarrment as the appropriate sanction for the accused's intentional misrepresentations and his trial misconduct. The ABA Standards point to a sanction short of disbarrment for the accused's incompetence and his ex parte contact. We turn to aggravating and mitigating circumstances.
B. Aggravating and Mitigating Circumstances
" ggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed." ABA Standard 9.21. The first aggravating factor in this proceeding is that the accused has a prior disciplinary offense. ABA Standard 9.22(a). In 1994, the accused stipulated to discipline for contacting a represented party without the permission or presence of that party's counsel, in violation of DR 7-104(A)(1). The accused received a public reprimand for that violation.
In weighing the prior offense as an aggravating circumstance, we consider its relative seriousness and the resulting sanction; the similarity of the prior offense to the offense in the present case; the number of prior offenses; the relative recency of the prior offense; and the timing of the current offenses in relation to the prior offense and resulting sanction.
We also consider whether the accused lawyer had been sanctioned fo
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