Quite the Coincidence

From the [Virgin Islands] Bar Herald, dated today: “Meet Our New [Virgin Islands Bar Association] President: Maxwell D. McIntosh.” And from Benta v. Bryan (3d Cir.), decided last Thursday:

Oral argument in this case was scheduled for December 15, 2010. As of November 22, 2010, Mr. Maxwell McIntosh, Bryan’s counsel, had not filed a brief in this matter. Accordingly, the clerk’s office issued a letter at the court’s direction ordering Mr. McIntosh to file a brief no later than December 3, 2010. No brief was filed. The clerk’s office then called Mr. McIntosh. He explained that he was not the “arguing counsel,” that he did not intend to file a brief or be present at the oral argument, and that he would contact Bryan to ascertain who would be arguing his case. Notwithstanding these comments, Mr. McIntosh has always been listed as the counsel of record for Bryan.

We issued an order on December 7, 2010 giving Mr. McIntosh two choices: (1) to “file an acceptable brief with the clerk of court no later than close of business on Wednesday, December 8, 2010 and either appear at oral argument on Wednesday, December 15 prepared to argue this case when it is called or arrange for alternative counsel to do so” or (2) to appear at oral argument and “be prepared to show cause why 8 he should not be held in contempt of this court and have appropriate sanctions imposed.” Mr. McIntosh did not file a brief by December 8, nor did he provide any explanation to the Court about how he intended to proceed.

The clerk’s office once again called Mr. McIntosh to inquire whether he intended to respond to our December 7, 2010 order. Mr. McIntosh advised the clerk’s office that he never received a copy of the order. The clerk’s office later verified that the order had been sent electronically to an email address that Mr. McIntosh had listed with the court. No “bounceback” notification was ever received that would have suggested that Mr. McIntosh’s email address was no longer valid.

The clerk’s office subsequently called Mr. McIntosh again and informed him that he was required to appear for oral argument. Mr. McIntosh appeared for argument in the Virgin Islands on December 15, 2010. When asked why he refused to comply with our order, he explained that he and his client had made a “procedural decision” not to file a brief, although the reasons for that decision were never explained. Mr. McIntosh also insisted that he never received our order directing him to file a brief and surmised that the electronic notice may have been placed in his junk email folder. He confirmed that the email address that the court had on file was indeed his current email address.

As we explained to Mr. McIntosh during oral argument, Mr. McIntosh is the counsel of record and was therefore obligated to either file a brief pursuant to our order or request an extension of time to file a brief. We further explained that if Mr. McIntosh was no longer the counsel of record, he should have filed a motion withdrawing from representation. Yet, to no one’s great surprise, he failed to do this as well. In light of Mr. McIntosh’s cavalier attitude toward complying with orders of this court, we imposed a fine of $500. There is more.

For the first time, during oral argument, Mr. McIntosh stated that Senator Bryan had alleged both a First Amendment claim as well as a claim of defamation, and he insisted that the jury’s verdict form finding in favor of Bryan reflected that the jury had awarded damages on both theories. Accordingly, Mr. McIntosh argued that even if we found no merit in Bryan’s First Amendment claim, we could still affirm the judgment based on the defamation claim. Kim Kocher, defendants’ counsel, responded that she was not aware that Bryan had ever raised a defamation claim and that she would need to confirm his representation by reviewing the verdict form, which apparently neither counsel had brought to the argument. In order to resolve the apparent confusion, we directed Ms. Kocher to file a letter pursuant to Federal Rule of Appellate Procedure 28(j) to clarify whether a defamation claim was properly before this court.

On December 23, 2010, Ms. Kocher submitted a letter as well as several items from the record that unequivocally showed that there was no defamation claim. These documents included: (1) Bryan’s second amended complaint which did not include a count for defamation; (2) the jury charge which did not contain any instruction on defamation; (3) the verdict form which did not include an interrogatory on defamation; and (4) the judgments, which made no mention of defamation.

As if this were not enough, on February 20, 2011, his client, Senator Bryan, submitted a letter to the court disputing that he and Mr. McIntosh had ever made a “procedural decision” not to file a brief in this matter. Bryan explained as follows:

When I sat in the courtroom when Justice McKee questioned Attorney McIntosh as to his failure to file the appropriate responses and briefs, he responded contrary to the truth about his reason and decision not to file the appropriate briefs. I was surprised and upset that Atty. McIntosh would have made such a response to the questions as a licensed practicing attorney in the Virgin Islands. Atty. McIntosh and I never had any discussions about not responding to the briefing schedules as requested.

(emphasis in original). Bryan went on to add that he had made “numerous attempts” to speak with Mr. McIntosh about why he said what he did during the oral argument, but that Mr. McIntosh had failed to respond to his repeated inquiries.

Of course, we have no way of knowing if the letter that purportedly came from Senator Bryan is authentic or whether, even if authentic, the statements are accurate or whether there is an explanation for what happened. However, we take this opportunity to underscore that an attorney’s misrepresentations to a court are a very serious matter. Rule 3.3 of the ABA Model Rules of Professional Conduct states that a “lawyer shall not knowingly make a false statement of fact or law to a tribunal.” Here, Mr. McIntosh made false representations to the Court about several key portions of the record, including the very claims that his client raised at trial. Furthermore, contrary to Mr. McIntosh’s assertions during oral argument, it now appears that plaintiff may not have ever agreed with, or even discussed, the alleged “procedural decision” to not file a brief in this case. [Footnote: As we explained to Mr. Mcintosh during argument, even if such an agreement had been reached with a client, it would not have created a license to ignore a court order.] Even if we gave Mr. McIntosh the benefit of the doubt that he had a momentary lapse in memory about Bryan’s claims against the defendants, his failure to comply with a court order to file a brief is inexcusable, and his cavalier attitude toward this court warrants further inquiry.

To say the least, we are baffled by Mr. McIntosh’s failure to respond to our repeated orders directing him to file a brief. A judicial order is not a request or an invitation; it is an “order.” An attorney cannot simply decline it or decide to ignore it. We expect an attorney to file a brief on behalf of a client in advance of oral argument, particularly in light of a court order directing him to do so. See Reitz v. County of Bucks, 125 F.3d 139 (3d Cir. 1997) (explaining that it is “incomprehensible that [an attorney] faced with such an order would not know that he should comply timely and that a failure to do so would undermine the authority of the court”). Nor are we sympathetic to Mr. McIntosh’s claim that he never received a copy of our orders. Mr. McIntosh verified that we had his current email address on file, and he is charged with ensuring that electronic notices from the court that he is an officer of do not fall into the cybernetic abyss known as a “junk mail” folder.

For the foregoing reasons, we will vacate the decision of the District Court of the Virgin Islands on the First Amendment claim. As noted at the outset, we will also refer Mr. McIntosh to the Third Circuit Court of Appeals’ Standing Committee on Attorney Discipline pursuant to Federal Rule of Appellate Procedure 46(c) and Third Circuit Rule of Attorney Disciplinary Enforcement 4.2, and to the Supreme Court of the Virgin Islands for any action that they deem appropriate.