Saturday, August 11, 2018

Further Questions About Jeff Chiow’s Potential Ethics Issues

In an earlier post, I shared one attorney’s thoughts regarding Jeff Chiow’s conduct in this matter. Specifically, an attorney familiar with the case stated his opinion that Jeff is pursuing a personal vendetta. That raises the question: Are there larger ethics issues involved for Jeff Chiow and his representation of St. Dysfunction, aka Grace Episcopal Church and Dysfunctional Bob Malm? I believe the answer is yes.

Under the ABA model rules of professional responsibilities, which serve as the basis for the state rules of professional responsibility that regulate attorney conduct, there are several provisions that may apply.

Pursuant to rule 4.1, for example, there is an obligation to be truthful in statements to others. In relevant part, it provides:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person;
That is difficult to reconcile with the language of several documents prepared by Jeff, including one that references a purported church shooting in a nonexistent town in Texas, or his claims that he was unaware that my mother is quite ill, or his statements that I left the church on my own after resigning from the vestry. (If the latter is true, why then did Bob Malm need to send an email directing me to obtain a letter of transfer? And why include Mike in that email? My belief: Jeff is either incredibly dumb, or he’s dishonest, or both.)

Similarly, having practiced law for a number of years, we must assume that Jeff understands basic legal concepts and terminology. In that context, Jeff repeatedly contends that somehow blogging about someone is harassment. That’s another curious proposition, since 1) Under Virginia law, harassment requires direct contact with the victim, either in person, or by phone, text, or email. 2) Jeff presumably understands that, under the First Amendment, bloggers receive the same constitutional protections as other journalists. Think about it: Were repeated blogging about a particular topic grounds for harassment, major media outlets, like Time and CNN, would have been convicted long ago of harassing Donald Trump (an outcome of which the latter would no doubt approve — but I digress).

One can then turn to his assertions that Mom’s collective pseudonyms are somehow a threat. But threat jurisprudence is well established; to not be protected under the First Amendment, language must be a clear threat. That’s a very high standard, and court cases are replete with situations in which the courts have protected even facially troubling language.

Relatedly, Jeff tries to run roughshod over the First Amendment right to anonymity by repeatedly suggesting that there is something nefarious about Mom’s use of a collective pseudonym. But anonymity and pseudonymity are well-established rights, dating back to the framers of the Constitution and including the Federalist Papers, Deep Throat, and many other high water marks in our constitutional scheme of governance. As an attorney, Jeff either knows this, or should know it. (If not, we then enter into the realm of professional incompetence, which would mean that Jeff has an ethics issue, but from another angle.)

One then bumps into the issues, previously discussed, with Jeff’s use of inflammatory language in his legal writing, referring to “ranting and raving,” “domestic terrorism,” “ceaseless harassment” and more. Such conduct is, I believe, highly inappropriate for an officer of the court, and undermines respect for our legal system. This is reflected in Rule 8.4(d), which forbids conduct “prejudicial to the administration of justice.”

Underpinning all of this is a baseline issue, which is Jeff’s obligation to only pursue meritorious claims. In this regard, Rule 3.1 provides: 
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
Having already discussed the various problems with Jeff’s case, Rule 3.1 suggests that Jeff is, at best, on thin ice. This view is bolstered by the comments of the third party attorney, who stated the belief that Jeff is “coming at [me] with a personal vendetta.” That speaks to motive and judgment, and in both, Jeff’s actions and conduct are questionable.

Of course, as an avid reader of my blog, Jeff at this point has had ample opportunity to consider his position and his professional ethics, as well as his personal ethics as a purported Christian. He’s also had plenty of time to consider the implications of his actions for his clients and the reputational damage he is causing. So at this point, we can only wait and see. But my opinion is this: At this juncture, there is no outcome in which Jeff’s clients are better off than they were before Bob Malm’s stupid — and unethical — decision to revive our dispute.

To use two words Bob Malm (a paragon of appropriate clergy conduct, if there ever was one) likes to use in reference to me: 

Sad.
Dysfunctional.