There is a bizarre case out of Arizona where lawyer Dennis Wilenchik has been given a formal sanction of admonishment from the bar after he sent profanity laced emails to a client who he accused of failing to pay his bills. The emails also included a reference to the movie Deliverance and its notorious rape scene. After accepting the discipline, Wilenchick now is seeking to set aside the discipline in light of new evidence. The discipline included a one-year probation period during which Wilenchick would have to continue with anger management treatment.
Some coverage of the discipline was critical at the time of the compromise on the lack of more serious punishment.
Wilenchik was upset with a client who ran a medical marijuana consulting business. In his emails, Wilenchik called his client a “cheap asshole” and threatened to sue for the fee — to which the client responded “Bring it, bitch!”
Wilenchik responded to that taunt with “OK drug dealer—I look forward to the many nights and mornings when you think of my name and squeal—you mean nothing to me. Check out the movie Deliverance.”
Wilenchik’s lawyer however introduced new evidence that the client did not take offense and did not believe (as was suggested by the Bar) that he was at risk of being sexually assaulted. The complaint suggested that the client took the Deliverance reference literally but in his declaration the client states:
“In fact, I thought that Mr. Wilenchik’s last Deliverance email to me was rather humorous actually, and stated in such a manner that neither I nor any reasonable person would or could seriously construe this to be a real intent to harm me or my family . . . Moreover, Mr. Wilenchik’s last Deliverance email to me was exactly what I would expect anyone, including a lawyer, to write after I sent an email saying, ‘Bring it bitch.’ In other words, these emails were harmless banter which I instigated and therefore it is impossible for me to have been offended.”
The complainant also says that he was “in shock and disbelief” that the bar actually disciplined Wilenchik and that he filed the complaint to avoid the payment of the debt. The client now praises Wilenchik as a great lawyer and that he was unfairly treated by the Bar.
I fail to see how Wilenchik was unaware of the position of the client or, more importantly, the bar was unaware. It seems to be determinative at the client considered the language to be a joke. Is the language professional? No. However, the meaning can turn on the relationship of the lawyer and the client. Moreover, in this case, the client reportedly admitted that he brought the complaint to try to avoid paying a debt. That seems a fairly compelling case for vacating the earlier order and at least considering the new evidence.
Clearly the emails were dumb but the question is whether they warrant discipline.
What do you think?
Source: ABA Journal