Donald A. Bailey, a former US Congressman, and Auditor General of Pennsylvania, has been suspended from the practice of law for five years. According to the report and recommendation of the Disciplinary Board, Bailey has a history of a Private Reprimand in 2009 for violation of several rules of professional conduct, including a case in which he “used vulgar language” in response to a motion to dismiss, and a case in which he “engaged in a discourse on the competence of the court and persisted in attacking the court’s integrity.” Bailey also has a history of federal court sanctions resulting from allegations of fraud and judicial misconduct.
A matter in which federal court sanctions were levied is the basis for the current suspension. In 2007, Bailey filed two actions in the Middle District of Pennsylvania. Judge Malcolm Muir granted motions to dismiss and for summary judgment against Bailey’s clients in the first action, and Judge John E. Jones granted a motion to dismiss in the second action. The defendants then filed a motion for sanctions, requesting attorneys fees and costs. Magistrate Judge Timothy Rice recommended an award of $28,041.71 in attorneys fees and costs, and Judge Jones subsequently issued an order awarding an additional $19,240.19 in attorneys fees and costs. Bailey filed a motion for a rehearing en banc. In his motion for a rehearing, Bailey accused Judges Scirica, Jones, Conner, Kane, McLure, Muir, Rambo and Magistrate Judge Rice of judicial misconduct and favoritism. Bailey accused several judges of being part of a “highly unethical ‘clique.’”
At the disciplinary hearing, Judges Conner and Jones testified. Judges Conner and Jones testified they were not involved in any conspiracy to “get” Bailey, nor were they involved in any “clique,” with the purpose to “get” Bailey. Bailey testified he believed his accusations were true. The Disciplinary Board found Bailey violated RPC 4.1(a) (making a false statement of material fact in the course of representing a client); RPC 8.2(a) (making a statement the lawyer knows to be false or with reckless disregard to its truth or falsity concerning the qualifications or the integrity of a judge); and RPC 8.4(c) (engaging in conduct involving dishonesty, deceit, or misrepresentation). Bailey has announced his intention to continue to fight the suspension.
The obvious lesson from this case is when accusing a judge of impropriety, you had best have your proofs of the alleged impropriety lined-up. A practitioner who calls into question the integrity of a judge is likely to have a battle (with the judge among others) on his or her hands.