By Joel Warner
By Michael Roberts
By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
It's hard to say precisely when things started falling apart for Denver lawyer David L. Smith. A good guess might be mid-July 1992, after he filed a request in federal court to take the deposition of a dead man.
Smith, who was representing plaintiff Geana Dunkin in an employment-discrimination suit against Louisiana-Pacific Corporation, already had a reputation for outrageous behavior in the courtroom. Just two months earlier, U.S. District Judge Lewis T. Babcock had derided him for "obstreperous conduct" in another lawsuit. "You file on everything," Babcock complained. "You file a plethora of pleadings that unduly complicates, delays and magnifies the case...I have watched the paper flow across my desk...and it is disgraceful."
Now, at 10 a.m. on July 16, standing in Room C-203 of the federal courthouse on Stout Street, Smith was in deeper trouble than ever. Judge Edward Nottingham, known for his hot temper, was peering down from the bench, amazed that Smith would defy an order he'd entered seven days before in the Dunkin case. Because of Smith's "persistent course of harassment and discovery abuse," Nottingham had required him to justify all future depositions to a magistrate. But Smith had ignored the ruling. Instead, he'd gone ahead and filed unsubstantiated requests to depose more than thirty people, one of whom, he'd recently been informed, was no longer alive.
"I think you're just trying to harass everybody here," Nottingham fumed. "I think you're trying to harass Louisiana-Pacific, opposing counsel and the court. If every attorney conducted himself in the way that you have conducted yourself here, we'd be bogged down in pettifoggery. Because that's what you've been doing all morning, is pettifogging." To make sure his point got across, Nottingham took the unusual step of fining Smith more than $4,000 for his use of "Rambo litigation tactics."
For Smith, a Harvard Law School graduate and former Denver prosecutor, it's been downhill ever since. He has racked up close to $45,000 in additional fines--none of them yet paid--as well as a host of other rebukes from Denver's most eminent jurists. Judge John P. Moore of the Tenth Circuit Court of Appeals has chastised him for his "relentless aggressiveness" and "marked indifference to or ignorance of the law." Other circuit judges have labeled Smith's appeals "frivolous" and "egregious." Federal Magistrate Donald E. Abram has accused him of "faulty legal reasoning," "attorney insolence" and "disdain with the court's operation." U.S. District Judge Zita Weinshienk has said Smith's conduct "borders on incompetency."
Today Smith says he stands on the brink of financial and professional ruin. He has been suspended from practice before the Tenth Circuit, which encompasses Colorado. He faces imminent suspension in U.S. District Court and the possibility of censure by the Supreme Court of Colorado. Half a dozen formal grievances have been filed against him by other lawyers. According to a recent financial statement, his liabilities exceed his assets by more than $200,000. "You can see what kind of a monolith I'm up against," Smith says. "Every judge over there is against me."
But the 49-year-old lawyer has vowed to take his case all the way to the Supreme Court of the United States. And despite his reputation as a troublemaker, he's getting some distinguished help along the way. The president-elect of the Colorado Bar Association has signed on as his attorney, and the American Civil Liberties Union is voicing its support. Both say Smith's standoff with judges embodies an important principle of due process. Smith, meanwhile, claims the dispute involves nothing less than a sinister scheme to force a strident advocate for civil rights from the legal system.
"Judicial extortion is exactly what we have here," Smith says. "This is a full-blown conspiracy."
All lawyers, before they are allowed to practice in Colorado, take an oath in which they swear "by the Everliving God" to show respect for judges, the courts and each other. They also promise to adhere to the bar's rules of professional conduct, which state that attorneys should eschew "frivolous" claims and avoid "conduct intended to disrupt a tribunal."
There's sound reasoning behind the oath, says University of Denver law professor James E. Wallace. The American legal system is a self-governing one; unless lawyers regulate themselves, the system would devolve into anarchy and chaos. "Lawyers have to play by the rules of the game," says Wallace, who sat on a committee that reviewed the state's current ethics guidelines for the Colorado Supreme Court. Otherwise, he says, "the system would fall apart. It would just collapse of its own weight."
Denver attorney Henry Hall, who authored a statute on frivolous litigation for the Colorado Legislature, agrees. "A lawyer owes a duty to society and to the court that transcends his duty to his client," Hall says. "There is no right, in this day and age, to be a `superadvocate.' You just can't do it. The system can't afford it. There must be reasonable limitations on advocacy.
"David Smith's `crime,'" Hall adds, "is that he violates this principle."
Hall knows Smith well. Formerly an in-house attorney for the Denver Water Department, Hall first started tangling with Smith in 1990, when Smith filed a sex-discrimination suit against the city on behalf of an employee named Kelly J. DeHerrera. DeHerrera, a laborer, utility worker and equipment operator, alleged in the suit that she was passed over for promotions and paid less than her male counterparts solely because of her gender, even though the federal Equal Employment Opportunity Commission had already investigated and found no basis for that claim.