Spanning a lengthy, 20,000-word ruling issued by the Washington Supreme Court on Thursday in In the Matter of Disciplinary Proceeding Against Feyissa, the opinion was authored by Justice Sheryl Gordon McCloud:
After a 12-day disciplinary hearing, a hearing officer (HO) concluded that Shakespear N. Feyissa committed six counts of misconduct. The presumptive sanction for most of those counts was disbarment…. The Disciplinary Board (Board) of the Washington State Bar Association (Bar) unanimously adopted the HO’s disbarment recommendation. Feyissa appeals….
Attorney Shakespear N. Feyissa was born in Ethiopia. He immigrated to the United States at around age 17….
There is a great deal at stake in the case, and you can read it in full here. Yet one brief passage, in particular, left an impression on me:
Feyissa claims that the HO refused to consider cultural differences. But the record contradicts that assertion ….
As noted above, Feyissa’s friend testified about cultural differences between Ethiopian and Western norms in negotiations. The witness suggested that “in Ethiopia, ‘If you tell a lie but everybody’s happy, then you didn’t do anything wrong.'”
The HO clearly did not decline to consider this testimony or its potential impact on the case, as demonstrated by her legal conclusion on the issue; the HO reached the sustainable legal determination that this cultural difference “does not exempt Respondent from his professional obligations under the RPCs, and thus cannot be accepted as a reason to mitigate Respondent’s conduct as a lawyer.”
Here are excerpts from Feyissa’s counsel’s briefs that raise the argument to which the supreme court apparently referred:
The complaint also alleged that Mr. Feyissa made false statements in negotiating on his clients’ behalf. As explained below, due to the very different set of norms in Ethiopian culture surrounding negotiations, he did not understand the limits of bluffing and puffery in negotiations, and made the false statements solely to get his clients more money. Mr. Feyissa admitted the false statements for which he was responsible, stopped engaging in that practice after receiving the grievance; and expressed regret for his conduct during the hearing…..
[T]he Hearing Officer refused to consider evidence that in Mr. Feyissa’s culture, telling lies is accepted as long as it makes other happy and that in negotiations, both sides understand that the other will exaggerate and twist the truth….
The Hearing Officer also erred by refusing to consider Mr. Feyissa’s cultural background in finding that the false statements “seriously adversely reflected on his fitness to practice,” wrongly concluding that because his cultural background did not “exempt Respondent” from the RPCs, it should not be considered at all. Mr. Feyissa never asserted that he was exempt from the RPCs. Instead, the context for the misstatements is critical in evaluating whether the misrepresentations to third parties seriously adversely reflected on his fitness to practice. As discussed above, there was uncontested evidence that false statements are acceptable in negotiations in Ethiopian culture. Mr. Feyissa now understands that the rules governing his conduct in negotiations and agrees that he did not comply with the RPCs, but the reason he thought he was allowed to make such statements needs to be considered when determining the degree to which his conduct reflected on his fitness to practice….
ODC criticizes Mr. Feyissa’s counsel for asking race-related questions and claims that “[t]he Hearing Officer’s explicit rejection of Respondent’s attempt to inject race into the proceeding makes clear that the Hearing Officer had foreclosed any consideration of race as a factor in this case and undercuts the claim that the decision was tainted by racial bias.” That assertion is based on Respondent counsel attempting to impeach Dr. Britton after ODC opened the door by eliciting demonstrably false testimony that he and Mr. Feyissa had a similar skin tone. The Hearing Officer’s refusal to permit impeachment based on race-related testimony on direct is itself a potential instance of implicit racism. As discussed in the Opening Brief …, color-blindness is a contemporary form of racism. That is further reflected in the Hearing Officer’s refusal to consider evidence that falsehoods in negotiations are acceptable in Mr. Feyissa’s culture, which she wrongly viewed as using “cultural background [to] exempt Respondent from his professional obligations under the RPCs.”
Just to be clear, I do not contend that Ethiopians are inherently more predisposed to lying in negotiations than Westerners; of course, people from any background lie in various contexts; and the rules surrounding honesty in negotiation can be intricate—to quote the commentary to the Model Rules of Professional Conduct, for instance,
Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact [as to which a duty of honesty applies]. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.
But even if Feyissa’s counsel was correct that Ethiopian norms related to honesty in negotiation differ here, I concur with the hearing officer that this should not be treated as a mitigating factor in this case.
