Attorney in disciplinary probe remains defiant
By Richard Gazarik
Published: Thursday, Dec. 20, 2012, 12:01 a.m.
Attorney Don Bailey, facing a five-year suspension for professional misconduct, concedes his legal career may be over but said he doesn't care if he ever practices law again.
The 67-year-old has diabetes and back problems but he remains defiant even though the Pennsylvania Disciplinary Board has recommended he be suspended from practicing law.
“I'm not worried about missing anything,” Bailey said in an interview. “Nobody's going to intimidate me. It doesn't matter to me. I'll find a way to fight back. The procedural process is not over yet. I'm dealing with it. They're going to get me, probably,” he said. “They're not going to stop me from fighting back.”
In a 49-page report from a hearing committee of the Disciplinary Board, the committee said Bailey made unsubstantiated charges against federal judges that triggered the disciplinary investigation. The committee recommendation goes to the Disciplinary Board and then to the Pennsylvania Supreme Court for a final decision. Under the board rules, the justices can increase or decrease Bailey's punishment.
Bailey expects no mercy from either the Disciplinary Board or the Supreme Court.
“I have no faith in them,” he said.
The committee recommended the second most severe penalty Bailey could have faced short of disbarment. He could have been privately reprimanded, publicly censured, put on suspension under probation, suspended or disbarred. The five-year suspension is the maximum length of time he could have received, according to the board's rules.
Robert Davis Jr., an adjunct law professor at Widener Law School and practicing attorney in Harrisburg, has spent 40 years prosecuting and defending lawyers accused of professional misconduct. He said a five-year suspension is significant because if the committee had recommended disbarment, Bailey would have to wait five years before he could apply to be reinstated.
“Five years' suspension and disbarment are not that different,” Davis said. “A hearing committee tries very hard to do the right thing. I've begged disciplinary committees for five-year suspensions. A five-year suspension says something about a lawyer's fundamental character.”
Applying for reinstatement would be a steep hill to climb, Davis said.
“He would have a higher burden of proof of his character if he was disbarred,” he added.
In court filings and during a two-day hearing in September before the board, Bailey portrayed himself as a reformer fighting a corrupt and politically-tainted legal system. Attorneys for the Disciplinary Board said he was a poor lawyer who made unfounded allegations against federal judges.
“There is a clique of judges who use the system to intimidate anyone who criticizes judges,” Bailey continued. “The Disciplinary Board is nothing but a fraud. Because I'm not afraid to speak up, I'm attacked.”
During a September hearing before the committee, Bailey admitted making the allegations.
“I confess that I did so because objectively speaking I believe they were (true). I also confess that I still believe every word of what I said and that there's significant evidence to support,” according to a hearing transcript.
In 2007, a federal magistrate sanctioned Bailey by ordering him to pay more than $47,000 in fines and legal costs for failing to adhere to the Rules of Professional Conduct for attorneys. Martin Carlson characterized Bailey as a “repeat offender” of the rules and had been involved in a “staggering array of serious professional misdeeds,” including presenting unfounded allegations in court, filing unsupported legal arguments, using personal invective and plagiarism.
Bailey said the charges were a “vendetta” by judges “to get me.” He claims that several federal judges conspired to dismiss lawsuits he had filed and accused a colleague of one jurist of being involved in pedophilia “and other perverse sexual behaviors” without any proof, according to a board filing.
Under the Rules of Professional Conduct, an attorney cannot raise an issue that has no basis in fact or the law and cannot criticize the qualifications or integrity of a federal judge by making knowingly false and reckless comments.
Bailey served two terms as a congressman when he lived in Westmoreland County and a term as state auditor general. He ran an independent campaign this year for attorney general. After leaving public office, he began practicing law in Dauphin County. While Bailey said he misses politics, he doesn't think he will ever run again for public office.
“I do miss public debate. The biggest problem I've got is my age.”
Richard Gazarik is a staff writer for Trib Total Media. He can be reached at 724-830-6292 or at firstname.lastname@example.org.
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