Arizona Supreme Court Rule 41(g), permits attorney discipline based on the bar’s determination that an Arizona lawyer has engaged in “offensive conduct.” Now Dennis Wilenchik, an Arizona lawyer who got in a nasty e-mail exchange with a client over a fee is challenging his “admonishment,” a significant form of bar discipline, based on the surprise declaration of his contentious client that he was never offended. An admonished lawyer will usually accept discipline by consent, which in Wilenchik’s case includes a one-year probation period and anger management treatment.

The e-mail exchange began getting heated when Wilenchik called his client, who owned a medical marijuana consulting business, a “cheap asshole.” Later he threatened to sue for his fee, to which his client replied,“Bring it, bitch!”

Wilenchik’s evocative response: “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.”

You know, like in this classic film moment…

http://www.youtube.com/watch?v=pRxUbv90lLI

Yes, cultural references to film classics are very useful. Still, it was this reference that clinched it with the disciplinary committee.

Wilenchik’s lawyer says there is newly discovered evidence showing that the client’s complaint to the bar was based on a claim that the client feared he would be gang raped because of the reference to “Deliverance.”

In a declaration, the complaining client now says he wasn’t offended by anything in Wilenchik’s emails:

“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.”

Your Ethics Alarms Labor Day Weekend Ethics Quiz is this:

Does someone have to be offended for a lawyer’s conduct to be sufficiently offensive to warrant discipline?

I don’t know what they’ll decide in Arizona, but my answer is that I don’t think so. The lawyer’s e-mail was unprofessional and uncivil and reflects poorly on the bar and the legal profession. It doesn’t matter if the client is offended or not. The profession is offended, and has a legitimate interest in encouraging lawyers not to be this crude and uncivil with anyone in the course of their legal practice. Would the bar consider it a convincing defense if a lawyer who habitually referred to his black clients as “niggers” could show that they didn’t mind and thought it was hilarious?

I also wouldn’t be surprised if both Wilenchik and his lawyer get in trouble for this dubious defense, which stinks. This client reported his lawyer for the e-mail, but really thought it was harmless and funny? Now he says that he made the complaint just to avoid paying his fee. Ah. So he was lying then. Or is he lying now? He thought that reference to male rape was a threat, but he simultaneously thought it was funny. Interesting client, no?

I wonder what happened to the disputed fee. Is the client suddenly less offended now because Wilenchik has agreed to waive the fee?What do we call it when someone changes their testimony in exchange for financial considerations?

Hint: we don’t call it ethical.