CHARLESTON – A Charleston attorney says an “embarrassing” error that drew the ire of a federal judge was “unknowing and unintentional.”
In a response to an order from U.S. District Court Chief Judge Thomas E. Johnston, attorney Michael Mullins of Steptoe & Johnson asks that no sanction be imposed against him and work partner Robert E. Bailey.
In a July 15 memorandum opinion and order, Johnston said Mullins “materially misrepresented the law in hopes of skirting unfavorable binding authority,” calling the actions “sanctionable conduct.” Johnston gave Mullins 10 days to show cause as to why he shouldn’t be sanctioned for “materially mispresenting the law to this court.”
Mullins
| File photo
In his response filed July 24, Mullins said he based his motion in question on a West Virginia Supreme Court definition of the phrase “less than probable cause” rather than the U.S. Fourth Circuit Court of Appeals definition of “probable cause.”
But, Mullins goes on to say he and his colleagues “would never knowingly mislead this court or any court” while explaining the process that led to the error.
In the case, St. Albans couple Jason and Shanna Wickline accused various law enforcement officials of, among other things, violating their Fourth Amendment rights with an unreasonable search of their home. In his July 15 order, Johnston dismissed the claim against and removed the Kanawha County Commission as a defendant by saying the plaintiffs failed to allege sufficient facts to state a Monell claim and failed to allege law enforcement policies caused their Fourth Amendment rights to be violated. Kanawha County Sheriff Cpl. T.J. Cumberledge and three unnamed officers remain as defendants.
But after he handled that aspect of the case, Johnston turned his focus to Mullins’ actions.
While explaining the facts of the case, Johnston notes that the defendants’ counsel attached “a purported arrest warrant” for a woman the defendants said listed the plaintiffs’ address.
“While counsel correctly recognized that courts ordinarily cannot consider documents not attached to the complaint, they nevertheless assured the court that it would be appropriate to do so here,” Johnston wrote. “This would have been proper, counsel claimed, because ‘plaintiffs have expressly brought into question the existence and contents’ of the arrest warrant and it should therefore be treated ‘as if attached … to the complaint.’
“Tellingly, though, they cited no law supporting this novel theory of incorporation by reference – likely because that is not the law. … However, even if the court had taken the bait and erroneously treated this motion as one for summary judgment, the court still could not have found that the arrest warrant listed (the woman’s) address as plaintiffs’ home address – because counsel redacted the address on the provided warrant.”
Johnston goes on to chastise Mullins’ actions.
“Recognizing that this court might be inclined to apply the higher probable cause standard when ruling on the Fourth Amendment issue this case presented, defendant’s counsel said it would be a mistake to do so,” the judge wrote. “This would have been error, defendant’s counsel declared, because ‘courts have universally rejected any suggestion that (this) ‘reason to believe’ (standard) is anywhere near probable cause.’
“Citing only Pennington, a non-binding case from the West Virginia Supreme Court, defendant’s counsel claimed that there is a consensus among courts that the ‘reason to believe’ standard is ‘less stringent’ than probable cause.
“This couldn’t be further from the truth. Indeed, as Pennington itself recognized, courts are deeply divided on ‘the issue of what quantum of proof is necessary to satisfy this reason to believe standard.’”
Johnston notes that a dozen or so courts have accepted a position that the defendant’s counsel claimed no court had ever taken, including a “thorough, well-reasoned and binding opinion” known as United States v. Brinkley from the U.S. Court of Appeals for the Fourth Circuit that includes West Virginia.
“Brinkley thus binds this court and would have required the court to apply the probable cause standard when analyzing the Fourth Amendment issue here,” Johnston wrote. “But, in their briefing on the motion to dismiss, defendant’s counsel never once mentioned Brinkley. They instead tried to sweep Brinkley under the rug by pushing this court to follow Pennington – a non-binding state court case on the other side of the split – and claiming that courts’ universally’ agree with Pennington’s contrary, more-favorable holding.
“Doubtless, counsel did so thinking they could dupe this court into overlooking Fourth Circuit precedent, committing clear legal error and blessing a likely illegal search by applying a legal standard that the Fourth Circuit has unequivocally rejected. That takes nerve. …
“Did counsel expect the court to take their briefing as gospel? Did counsel not expect the court to (1) do its own research when deciding this motion, or (2) even bother reading the lone case they cited in support of their position?”
Either way, Johnston says counsel “crossed the line from zealous advocacy to flouting their unflagging duty of candor to the court.”
In his response, Mullins admits he incorrectly stated that Pennington’s definition was universally accepted by courts. He also lays out the process that he says led to his error.
Mullins says he saw two primary issues in the Wickline case: A Monell issue and the underlying Fourth Amendment issue. He said he is familiar with the Monell issue, but he researched the Fourth Amendment issue more, which included reading Pennington and Brinkley for types of evidence.
After he met with his clients, Mullins says he drafted a letter discussing the case that cited only Pennington’s “reason to believe requires less proof than probable cause” and made no reference to Brinkley. He says a copy of Pennington was placed in the case file, but a copy of Brinkley was not.
“Ultimately, attorney Mullins’ initial evaluation letter failed to recognize that Brinkley, not Pennington, supplied the definition of ‘reason to believe’ that governs this case,” Mullins wrote, saying the case was dormant until March 25 when he learned the Wicklines had served his client. He says he then contacted Bailey, of counsel with Steptoe & Johnson, and asked if he would draft a motion to dismiss only the Monell claim.
Mullins says Bailey has assisted him in drafting briefs for more than 20 years. He estimates Bailey has drafted more than 100 briefs for him.
“Attorney Mullins considers attorney Bailey’s work to have always been excellent and considers the pair to work well together (with attorney Mullins conducting discovery and attorney Bailey writing dispositive motions,” the response states. “Attorney Bailey acknowledges the deficiency of this research – specifically in not thoroughly reading Pennington and thus not applying Brinkley – and he offers no excuse for his failure to do so.
“Had he done so, he would have immediately realized that Pennington’s definition of ‘reason to believe’ had unusually parted company with the Fourth Circuit’s definition in Brinkley, that the standard governing the Fourth Amendment component of plaintiffs’ claims was that ‘reason to believe’ demands probable cause and that the question was far from universally settled.
“In any event, attorney Bailey did not find Brinkley.”
Mullins said he filed Bailey’s work with the court on April 15, saying their long working relationship made him believe there was no reason to re-research the issues.
“To be absolutely clear, respondents do not offer any part of this recitation of how they came to misstate the standard for ‘reason to believe’ or its universally among courts to defend their mistake,” Mullins wrote. “Both attorneys should have read Pennington far more carefully, and both attorneys should have applied Brinkley.
“Not doing so was sloppy and embarrassing. Had they done so, this disturbing incident would never have happened.”
Mullins writes that he and Bailey “offer how they made a mistake solely to show that they made a mistake.”
“They appreciate the court’s believe that respondents’ error is hard to understand as an error,” Mullins wrote. “But they hope that by retracing their steps, they have shown that their error was exactly that: an error, not an effort to deceive.”
Mullins again stresses he and Bailey never would knowingly mislead a court, noting Bailey’s previous work as a U.S. District Court law clerk and a U.S. Court of Appeals law clerk, both jobs “demanded a high degree of integrity.”
Mullins says he has spent his career as a “front-line litigator.”
“Both have strived to perform and believe that they have performed their duties with the utmost integrity and honesty,” Mullins wrote to Johnston. “Attorney Mullins and attorney Bailey hereby affirm that they did ‘not knowingly … make a false statement of ... law’ to this court.
“Indeed, they further affirm that in their nearly 50 combined years as attorneys, they have never knowingly misled any tribunal.”
Mullins closes his response by saying he and Bailey do not seek to minimize the gravity of their mistake.
“Instead, they were horrified to learn about it,” Mullins wrote. “But they hope that they have demonstrated to the court that their mistake was exactly that: a wholly inadvertent mistake, not a knowing deception that requires a sanction to prevent its recurrence.”
John Bryan, the attorney representing the Wicklines in the case, filed a letter with Johnston supporting Mullins.
"I have litigated numerous Section 1983 cases against defense counsel, Michael Mullins, over the course of the last 18 or so years," Bryan wrote in his July 19 letter. "I have tried two jury trials against him in Section 1983 cases. ... Many others have been litigated through the pretrial stage. I’ve also taught numerous continuing legal education seminars pertaining to government and police liability issues alongside Mr. Mullins for the National Business Institute.
"Based on my extensive experience directly litigating against Mr. Mullins, I do not believe that he would intentionally mislead the court about the law – in this case, nor any other. As the court is well-aware, this area of the law can be confusing, even to the most experienced practitioners – especially where one is required to frequently jump back and forth between state and federal court."
This isn’t the first time Mullins has been threatened with sanctions by an officer of the court.
In 2021, Charleston attorney Michael M. Cary filed a motion for sanctions against Mullins and his law firm Steptoe & Johnson after he accused Mullins of “character assassination” with false statements to a judge about Cary’s work ethic regarding a 2020 case they worked.
Cary accused Mullins of violating the West Virginia Rules of Civil Procedure and the Rules of Professional Conduct for telling a circuit judge Cary wasn’t much involved in the case. Cary said the judge reduced his guardian ad litem fee in the case because of Mullins’ false statements.
The parties reached a confidential settlement in the case, and Cary received all of the guardian ad litem fees he said he deserved.
According to the Steptoe & Johnson website, Mullins has worked for Steptoe & Johnson since 1998 when he graduated from the University of Richmond College of Law. His practice focuses on professional liability, long-term care, civil rights and defense of energy-based companies. He has been recognized by Best Lawyers for his medical malpractice defense work.
U.S. District Court for the Southern District of West Virginia case number 2:23-cv-799
