In 2000, I was asked to pick the top attorneys of the twentieth century. (See Jonathan Turley, The Top Trial Attorneys of the Century, The Legal Times, November 29, 1999, at 27). I selected Bailey as one of them. It was admittedly a controversial choice but I believe Bailey’s contributions to trial practice more than warranted his inclusion (with such notables as Delphin Delmas, Samuel Leibowitz, and Clarence Darrow).
This has been a long trip for Bailey from the top of the profession to a disbarred lawyer looking for any chance to practice again. In 2012 the Maine Board of Bar Examiners voted 5–4 to deny his application. He appealed and a two-day hearing was held by Supreme Judicial Court Justice Donald Alexander. Justice Alexander filed a 57-page ruling on April 19, 2013, stating that Bailey “was almost fit to practice law, except for an outstanding tax debt of nearly $2 million”. Bailey responded with a plan to repay the back taxes. (Notably, after representing himself in the tax court, Bailey was successful in reducing the amount owed to the government from $4 million to $2 million). His counsel filed for reconsideration before Alexander who decided that “[a] general survey of the state precedent on the debt payment issue suggests that the existence of a debt, by itself, may not result in a finding of lack of good moral character…Rather, findings of failure of proof of good moral character tend to be based on misconduct regarding effort — or lack of effort — to pay the debt, or misconduct referencing the debt payment obligation in the bar admission process.” The Maine’s Board of Bar Examiners then appealed Justice Alexander’s decision to the entire Supreme Court.
Bailey’s actions as counsel and trustee for Claude Duboc were egregious. In 1994, Bailey represented Duboc in his drug smuggling and forfeiture case. Under the plea agreement, Duboc agreed to forfeit all of his assets to the United States Government. This includes large foreign properties and stock, including 602,000 shares of Biochem Pharma (“Biochem”) stock worth $5,891,352.00. These assets were transferred to Bailey’s Swiss account to use these funds to market, maintain and liquidate Duboc’s French properties and all other assets. The idea was to maximize the forfeiture to show extraordinary cooperation in return for a shorter sentence. Bailey sought however to create a basis for claiming that appreciation of value of individual assets would not be subject to forfeiture. The Biochem Pharma Stock was a key component of that strategy. Ultimately, money was transferred to a covert account with coordination from Duboc. In the meantime, on May 17, 1994, United States District Court Judge Maurice Paul held a pre-plea conference that dealt with Bailey’s fees and other issues. He ordered “[T]he remainder value of the stock which was being segregated out would be returned to the court at the end of the day, and from that asset the Judge would be – a motion would be filed for a reasonable attorney’s fee for Mr. Bailey.” Bailey would however claim that he never saw the order and continued to spend the money.
He was accused of contempt and commingling. In one count he accused of selling
“shares of stock and borrowed against the stock, deriving over $4 million from these activities. Bailey then transferred $3,514,945 of Biochem proceeds from the Credit Suisse account into his Barnett Bank Money Market Account. Bailey had transferred all but $350,000 of these proceeds into his personal checking account by December 1995. From this account, Bailey wrote checks to his private business enterprises totaling $2,297,696 and another $1,277,433 for other personal expenses or purchases. Bailey further paid $138,946 out of his money market account toward the purchase of a residence.”
Most people would agree that such conduct warranted disbarment. However, Bailey long insisted that he never held the stock in trust for Duboc or the United States and that it had been transferred to him in fee simple absolute. Second, he argued that this stock was not subject to forfeiture. Neither of these arguments were accepted. Yet, Bailey continued to defend his actions.
His statement that he viewed the actions taken against him as “kind of harsh” probably reflected that defense. The question is whether a lawyer can continue to question the severity of a sanction and still resume practice. After all, he was bankrupted and disbarred for 13 years. Bailey explained his view of the earlier case while saying that the Florida Supreme Court “had some grounds, in retrospect, that warranted disbarment,” but he believed the sanction was “kind of harsh.” He also said that he felt that the Justice Department targeted him for disbarment. There was clearly no love loss between prosecutors and one of the most successful defense attorneys of his time.
The Supreme Court however interpreted such comments as evidence that Bailey did not take responsibility for his actions: “By continuing to question many of the findings and conclusions by the Florida Supreme Court, and by suggesting that … the judges who presided in his cases were biased and that the Florida proceedings were the product of a conspiracy to deprive him of his constitutional rights, Bailey minimizes the wrongfulness and seriousness of his conduct for which he was disbarred.”
I am torn on this decision. I believe Bailey’s alleged actions warranted disbarment. However, he has taken a new state bar, waited 13 years, and had a legendary career before he went off this cliff. During that period before disbarment, Bailey was facing huge family and financial challenges. (In early 1999, his fourth wife, Patricia, died after a long struggle with pancreatic cancer. That was followed by the death of his former wife and close friend, Wicki, of cancer and then the death of his 91-year-old mother). No excuse for the conduct to be sure. Yet, it was the use of his testimony that concerned me. I can certainly understand the Supreme Court finding that the prior conduct simply made Bailey ineligible to serve as counsel for the rest of his life. That seemed to be the basis for the original denial in Maine when the board ruled that Bailey had not proved by “clear and convincing evidence that he possesses the requisite honesty and integrity” to practice law.
However, the Maine Supreme Court suggested that Bailey might have been able to practice again if he was more contrite. I viewed his statements as continuing to maintain that he had a plausible defense (certainly a claim that many would contest) while accepting that he deserved to be disciplined. It would suggest that anyone seeking reinstatement are expected to drop all questions or objections as to their prior treatment. Ironically, Bailey spoke truthfully while others might just have lied and said that they now accept all of the findings and actions of the prior proceedings.
What do you think?
Here is the opinion: Bailey Ruling