SHOULD BAR CHARGES BE FILED AGAINST ABBOTT & KIKO?

Lawyers like Jim Abbott and Colleen Kiko, Trump’s appointees to the FLRA, take a bar association oath to live by a higher than normal ethical standards.  They swear not to deceive, misrepresent, or commit a fraud, among other things. Lawyers have been tossed out of  bar associations just for making false statements on driver license applications.  Yet, back in 2018 these two self-proclaimed legal purists, decided to manipulate the wording of a Supreme Court decision they quoted in a FLRA ruling they wrote.  The decision was to reduce the right of unions to negotiate over mid-term changes.  How?  Well, imagine if somewhere on his trip down Mount Sinai Moses stopped to modify the ten commandments by using an ellipsis (those three dots that signal something has been omitted …) to delete just a word or two.  If he used the ellipsis the way Abbott and Kiko did we could now be living under the following commandments, “Thou shalt …commit adultery,” “Thou shalt … steal” and “Thou shalt … kill.”  The Abbott and Kiko ellipsis did not just slightly alter the meaning of the High Court’s decision; it altered it 180 degrees to support precisely the point these two thugs were trying to make. The question is whether practitioners should just give these two a pass or pursue the matter to the point where they may lose their law licenses.  Here is the logic of the draft charges we have seen.

The two Trumpettes’ 2018 decision held that while unions had the right to bargain over changes in “conditions of employment” they did not have the right to bargain over changes in “working conditions.”  The decision, which went against precedent by the U.S. Court of Appeals, cited as foundational support for that conclusion a passage in a U.S. Supreme Court decision which they quoted as follows:

On this point, the U.S. Supreme Court explained that while the term “conditions of employment” is susceptible to multiple interpretations, the term “working conditions,” as used in § 7103(a)(14), “more naturally refers … only to the ‘circumstances’ or ‘state of affairs’ attendant to one’s performance of a job.” U.S. Dep’t of Homeland Security and AFGE, 70 FLRA 501 (2018))

The union immediately requested reconsideration pointing out that Abbott and Kiko had misrepresented the Court’s words, but they refused to correct the error.  That forced the union to appeal to the U.S. Court of Appeals for the D.C. Circuit.  That court issued a decision in 2020 reversing Abbott and pointing out that they had misrepresented the Supreme Court passage by omitting two pivotal words.

But the Supreme Court, in deciding whether an employer was required to bargain over wages and benefits in Fort Stewart, explained that “working conditions” in § 7103(a)(14) “more naturally refers, in isolation, only to the ‘circumstances’ or ‘state of affairs’ attendant” to one’s job performance. 495 U.S. at 645 (emphasis added) (citation omitted). But the Court clarified that “here it is not in isolation, but forms part of a paragraph whose structure, as a whole, lends support to the Authority’s broader reading.” Id. at 646. By omitting the phrase “in isolation” and the High Court’s subsequent clarification, the Authority misreads Fort Stewart to imply that “working conditions” has a free-standing definition when, in fact, the point being made in Fort Stewart is the opposite. AFGE, Local 1929 and FLRA, No. D. C. Cir. 19-1069 (June 9, 2020) [Emphasis added]

The D.C. Circuit panel was kind to characterize what Abbott and Kiko did as “misreading.”

The Pennsylvania Bar Association Rules of Conduct, which Jim Abbott swore to uphold, put the following obligations on lawyers (The same rules apply almost verbatim to Kiko’s bar membership) :

8.4. Misconduct – It is professional misconduct for a lawyer to:

    • violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; …
    • engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
    • engage in conduct that is prejudicial to the administration of justice… (Emphasis added)

Another provision reads:

Section 1.0(5):  When used in these Rules, the terms “fraud” and “fraudulent” refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform. (Emphasis added.)

Deceit- Getting back to the ellipsis Abbott & Kiko used to alter the Supreme Court passage, the question is whether it was technically correct to use an ellipsis. According to grammar books, an ellipsis is used to omit words that are irrelevant, that make the quote hard to understand, or to save the reader time. Surely, the Trumpettes’ motive was not to save a reader time. After all, what alternative action could a reader accomplish in the time it takes to read two words? Blink?

Nor were the two omitted words irrelevant; indeed, they were the opposite of irrelevant according to three federal judges; they were essential to understanding the Court’s reasoning. Omitting them was unquestionably prejudicial to the administration of justice.

Nor can it be argued that they made the omission unconsciously. Using an ellipsis is a deliberate act by a writer. It takes time to identify the words to omit, the impact on the remaining words, and the reason for the omission.

In the absence of any other apparent motive, should it not be concluded that this was deliberate deceit and made for the purpose of deceiving?

Misrepresentation – Mr. Abbott’s action can also be characterized as a misrepresentation of the law to the parties and the reviewing court.

Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation.” (Black’s Law Dictionary (5th ed. 1979, 903).)

In Office of Disciplinary Counsel v. Anonymous Attorney A, 714 A.2d 402 (Pa. 1998), the court explained what constitutes misrepresentation in violation of the Rules.

Thus, we hold that a culpable mental state greater than negligence is necessary to establish a prima facie violation of Rule 8.4(c) This requirement is met where the misrepresentation is knowingly made, or where it is made with reckless ignorance of the truth or falsity thereof.

Surely, Abbott and Kiko “knowingly” made the misrepresentation because they replaced the two words with an ellipsis.  It was also a reckless act because, as the appeals court pointed out, the omission obscured the fact that the High Court reached the opposite conclusion that the Trumpettes did. So, Abbott and Kiko not only got it wrong; they got it 180 degrees wrong.

It is irrelevant whether they drafted the decision personally or caused it to be drafted.  It was issued as their decision which they presumably chose to defend through the union’s request for reconsideration and appellate court review.

We could go on to pass on the charges’ explanation of fraud in their work, but you get the point. In the Pennsylvania Bar case where they lifted an attorney’s license for lying on a driver’s license application, the court wrote, “Truth is the cornerstone of the judicial system; a license to practice law requires allegiance and fidelity to truth.” Nor does another court decision upholding disbarment help Abbott and his buddy, i.e., “…the seriousness of respondent’s misconduct is not lessened by the fact that the victims of his fraud were not his clients.”  That was written in the decision disbarring former Vice President Agnew for his White House activities.

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So, let us know whether bar charges should be filed against these two  and we will pass your thoughts without your identity along to the drafters considering the charges.  In the meantime, be on the lookout for deception, misrepresentation, fraud and other games in anything these two write. It could  be that they are ultimately held innocent by their bar associations, but in the meantime there sure is evidence that we are dealing with perhaps the two most dishonest people to ever sit on the FLRA.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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