Lawyers suspended for their role in Indian 'coup'

Two Alameda lawyers who helped a northern California Indian group devise a strategy for a "bloodless coup" were disciplined for misconduct that resulted from what a State Bar Court judge called their overzealous advocacy. PATRICK JOSEPH MALONEY [#42963], 62, was suspended for 90 days and THOMAS STEVEN VIRSIK [#188945], 39, was suspended for 60 days. Virsik's order took effect Dec. 30, 2005, and Maloney's on July 28, 2005. "Given the magnitude of their deception and the breadth of their actual knowledge about the true state of affairs surrounding this intra-tribal battle, we find no basis . . . to conclude that respondents had an honest or reasonable belief in the truth and accuracy of their statements to the Superior Court," wrote review Judge Judith Epstein. "Indeed, respondents' misconduct exceeds the bounds of zealous advocacy. It cannot be condoned."

The bar court's review department heard the case after both the State Bar and Maloney and Virsik appealed.

The lawyers represented the Round Valley Nation (RVN), a dissident group engaged in a power struggle with the Round Valley Indian Tribes (RVIT). RVIT is organized under a constitution approved by the Bureau of Indian Affairs, but the dissidents were unhappy with its governing authority and its conduct of tribal business.

In February 2000, the group elected an interim tribal council and 44 individuals signed a declaration of independence. However, because RVN did not follow procedures required by the tribe's constitution, the RVIT governing board repudiated the election, calling it a sham.

Nontheless, RVN fired all RVIT employees, told local banks that any relationship they had with RVIT was no longer authorized, and tried to terminate California Indian Legal Services as RVIT's 30-year legal representative. Epstein, with the concurrence of Judges Ronald Stovitz and Madge Watai, said Maloney and Virsik "actively participated in these efforts to perfect the coup."

The lawyers also represented Carlino Bettega, an RVN member who was sued by RVIT for workplace harassment, and attempted on several occasions to have the lawsuit dismissed. Three requests for dismissal and other pleadings submitted to the court contained misrepresentations, including a statement that Maloney and Virsik were authorized to seek the dismissal when they knew that RVIT was represented by another lawyer. At one point, they tried to change the name of RVIT in court, claiming a constitutional election caused a change in the "form of governance." Epstein called the move "a stealth attempt to substitute RVN for RVIT as the plaintiff in the Bettega case, in order to effect a dismissal . . . without authorization by RVIT or the intervention of the Superior Court."

The court eventually found that Maloney was not the attorney for the plaintiff and that RVN was not a party to the suit and ordered sanctions of $2,000.

After a five-day trial before the State Bar Court, hearing Judge Pat McElroy found that the lawyers' misrepresentations amounted to moral turpitude and that they failed to obey a court order. Although McElroy also found they tried to mislead the court, she dismissed the count as duplicative. The review panel agreed and also reversed the finding that the pair did not obey a court order.

She said Maloney and Virsik's pleadings were "permeated with half-truths, omissions and outright misstatements of fact and law. . . . Their deception thus was not the result of mere carelessness; rather, respondents intentionally wove a tapestry of deception in their overzealous efforts to effectuate a legal strategy."

The panel considered Maloney's 31 years of discipline-free practice in mitigation as well as extensive good character testimony presented on behalf of both lawyers. The character testimony, Epstein wrote, "goes a long way towards explaining respondents' belief, albeit misguided, that their litigation strategy would right the perceived wrongs of the downtrodden RVN faction."

Nonetheless, the review panel ordered the pair disciplined for multiple acts of misconduct, noting the numerous opportunities, all ignored, to correct misleading statements. Because Maloney was the partner in charge of the litigation and Virsik was a relatively inexperienced associate, the judges recommended a longer suspension for Maloney. Both men were placed on probation for two years and were ordered to take the professional responsibility exam. Maloney also was ordered to comply with rule 955 of the California Rules of Court by notifying his clients and other pertinent parties of his suspension from practice.