By Michael Howell
Robert Myers, the attorney representing suspended Treasurer Valerie Stamey, was recently sanctioned in Ravalli County District Court in a totally unrelated case involving a parental rights dispute between Sara and Dan Cox, and ordered to pay $10,000. The court found it to be “the minimum amount necessary to deter Mr. Myers from future comparable misconduct.” Part of that misconduct included making allegations against others of criminal actions based solely on his client’s affidavit without ever producing any evidence.
According to Judge Jeffrey Langton’s recent Order, in the course of the case Myers accused his client’s former wife of fabrication of evidence, perjury, witness tampering and conspiracy; accused her attorney of suborning perjury, ex parte communications and witness tampering; accused a child therapist, who testified, of violating the law and her professional code of ethics, acting deceptively and intentionally lying; and accused the Court of judicial misconduct, collusion, presiding over a “lawless” court, and exhibiting a bias against his client.
“None of these factual contentions appeared to have even a minimum quantum of evidentiary support,” states Langton. He goes on to note that the legal contentions Myers made about due process violations, judicial misconduct, and unconstitutional statutory provisions “were not warranted by existing law or nonfrivolous argument for modifying existing law, and the majority were not even supported by developed argument.” Langton also notes that in direct contradiction to Myers’ own claims that governing statutes do not allow for post-judgment authority, Myers then attempted to subpoena the Court to appear in deposition.
“The lack of evidentiary support for the factual contentions and the lack of legal support for the legal contentions in Mr. Myers’ filings suggest these filings were presented for the improper purposes of harassing Sara, and by extension, her attorneys, her witness, and the Court and its staff; causing unnecessary delay; and needlessly increasing the cost of litigation,” wrote Langton.
Langton goes on in his Order to note in his general findings that in his handling of another case representing Dan Cox against his wife’s company, Myers showed difficulty in understanding and answering questions from his own attorney as well as during cross-examination. He notes that on several occasions Myers expressed difficulty in remembering what he had written in his briefs. He called Myers’ testimony in the case, “generally vague and at times incomprehensible.” Langton then details a long list of incredible statements, lapses in memory, and unsubstantiated claims made by Myers.
After missing the deadline for filing an appellate brief with the Montana Supreme Court on behalf of Dan and during some legal wrangling about extensions of time, Myers unleashed the same barrage of accusations supported only by his client’s affidavit and some incredible legal arguments. On June 25, 2013, the Montana Supreme Court denied the request for an extension and dismissed the appeal.
“By asserting so many extraordinary factual contentions against so many people in his brief filed in the Montana Supreme Court on June 24, 2013, Mr. Myers appears to have been attempting to deflect the focus away from his failure to timely file an appellate brief on Dan’s behalf,” wrote Langton. He also found that Myers was intending to conduct a “fishing expedition” through depositions to try and find some evidence to support his unsubstantiated claims by deposing Sara, her two attorneys, the Court, a member of the Court’s staff, the children’s therapist, and various others. Langton goes into each accusation and debunks the accusations made by Myers.
“Mr. Myers’ intransigence in maintaining his assertions of factual contentions in the absence of evidentiary support and, in some instances, despite evidence in the record to the contrary, is highly troubling,” wrote Langton. Langton also examined many of Myers’ legal arguments one at a time and found them for the most part to be “not credible…not supported by developed argument or legal authorities…largely incomprehensible” and noted a “failure to make good faith arguments for the majority of his legal contentions.” He also found that “Mr. Myers used highly inflammatory language to make his unsupported accusations…” that “far exceeded the exercise of mere hyperbole or excited statement.”
Langton states that when Myers reread the briefs he had filed that he was “absolutely shocked” at himself over his use of the language and states he is “not quite sure” why he used the language and claims to be “messed up” on the “subject matter.” He said that what he said and the words he used “truly” bother him. Langton notes that Myers “expressed regret for describing this case to the Montana Supreme Court as ‘a veritable yet sad soap opera of events that leads us to our current condition and location of lawless proceedings, judicial misconduct, and collusion’.” But then, he states, Mr. Myers maintains his belief that the Court conducted a lawless proceeding; however, he regrets he did not “put it in a way that was less offensive.” Myers did express the wish that he could take back the characterization of his role in this case as “the legal equivalent of doing an autopsy and investigation on a mutilated body.”
Langton found that Myers’ ‘fishing expedition’ was based on improper purpose compounded by his failure to seek leave to conduct discovery and by his contradictory legal contentions that discovery was not allowed by governing statutes. He found that Myers’ filings were presented for the improper purpose of harassing Sara, her witness, the Court and its staff, causing unnecessary delay and increasing the cost of the litigation and expenditure of judicial resources. He found that Myers’ untimely filings in District Court and at the Supreme Court which asserted the extraordinary factual contentions of illegal acts and ethical violations of the children’s therapist, opposing counsel, and the Court “were filed, at least in part, to deflect the focus away from Mr. Myers own legal missteps.”
“Mr. Myers did more than play fast and loose with the facts,” wrote Langton, “he created extraordinary facts out of whole cloth for which he hoped he might later find evidentiary support.”
Langton notes that a lawyer’s lack of experience or knowledge does not reduce his liability under the law and although an attorney may rely on objectively reasonable representations of his client, “the majority of the representations made in Dan’s purported affidavits were not objectively reasonable.”
“Mr. Myers’ sole reliance on Dan’s purported affidavit, which contained many of Mr. Myers’ own factual contentions, in the absence of any credible inquiry into the veracity and accuracy of such factual contentions, was insufficient for Mr. Myers to form an objective belief that such contentions had evidentiary support,” wrote Langton. He also notes that several of Myers’ legal contentions were not made in “good faith.”
Langton considered a range of possible sanctions to impose, which stretched from a warning, to the imposition of fines, to prohibiting him from practicing within Langton’s Court for a year or from filing any documents without prior court approval, to having to practice with another attorney or take remedial courses in legal writing, civil procedure and legal ethics. He settled on a monetary sanction because it had the best chance of producing the desired result of deterring Myers, and any other attorney, from repeating the same misconduct in the future.
Langton determines that “for a lawyer living on a lawyer’s and doctor’s combined incomes, the court determines that a sanction of $1,000, or $5,000 or even $7,500 would constitute no more than a sting, or a nuisance penalty. A sanction of $10,000, however, would constitute a bite, which the Court believes Mr. Myers would be more likely to take seriously.”