Lawyer is Reprimanded For False Statement In Motion for Extension of Time.

The case is In re Ryan Kenneth Melcher, 2018 PR 88. Melcher was employed as an assistant federal publid defender in the office of the Colorado federal defender. Melcher’s error was a mistatement of fact in a routine motion for extension of time. The Panel describes the error in this way;

2. In November 2016, Respondent was appointed to represent Rocky Allen (“Allen”) before the Tenth Circuit Court of Appeals (“Tenth Circuit”) in relation to Allen’s appeal of his 2016 federal criminal conviction for tampering with a consumer product and obtaining a controlled substance by deceit or subterfuge. The matter was captioned United States v. Rocky Allen under case number 16-1450.

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3. On April 26, 2017, while representing Allen, Respondent filed a motion in Allen’s matter before the Tenth Circuit entitled “Appellant’s Unopposed Motion for 14-Day Extension of Time to File Reply Brief.” In his motion, Respondent informed both the court and his opposing counsel at the U.S. Attorney’s Office for the District of Colorado that he had multiple matters scheduled for oral arguments, and needed additional time to prepare, and included the following information in his motion:

“I also have been working on the following cases with upcoming deadlines in this Court: United States v. Archuleta, No. 16-1297 (oral argument set for May 9, 2017); United States v. Ivory, No. 15-3238 (oral argument set for May 10, 2017); United States v. Olea-Monarez, No. 16-1330 (opening brief due May 15, 2017); United States v. Allen, No. 17-1083 (opening brief due June 5, 2017).”

4. In writing that another client’s matter in United States v. Ivory was set for oral argument on May 10, 2017, Respondent knowingly made a false statement to both the court and his opposing counsel as United States v. Ivory was not set for oral argument, which Respondent knew at the time he filed his motion.

When the mistake was recognized, it was quickly corrected. Despite the correction, the ARDC made a finding that the lawyer engaged in fraudulent conduct in violation of Rule 8.4(d).

5. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. knowingly making a false statement of fact or law to a tribunal, by filing a motion for extension of time and including language that he needed additional time to prepare for oral argument in United States v. Ivory when Respondent knew there was no oral argument pending in the Ivory matter, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);

b. knowingly making a false statement of material fact or law to a third person, by serving government counsel with a motion for extension of time in which Respondent wrote that he was preparing for oral argument in United States v. Ivory when the Ivory matter was not set for oral argument, in violation of Rule 4.1(a) of the Illinois Rules of Professional Conduct (2010); andc. engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, by purposely including false language that United States v. Ivory was set for oral argument when Respondent knew there was no oral argument pending, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010

The Panel acknowledges that the lawyer made only one false statement in the motion and that he recevied no personal benefit from that false statement. In addition, the respondent lost his job and has now been publicly embarrassed.

Comment: in my opinion this small error should have been dealt with by a private reprimand, not a public finding that the lawyer violated Rule 8.4(c). This is disciplinary overkill.

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