Earlier today, I received a copy of a document indicating that Lindsey Anders and Leslie Malm are now represented by legal counsel in Alexandria. Out of respect for the attorney involved, I am not yet prepared to disclose the document, nor the identity of legal counsel. I do, however, want to reflect on the challenges facing legal counsel in such situations.
First, let’s look at the ethical issues confronting attorneys. Per the professional rules, these include the duty of candor to the tribunal. That means being truthful with the court, including not permitting deception by silence. Further, the ABA contemplates that attorneys must correct false material evidence, including that offered during discovery. This may take the form of private remonstration, supplemental answers to interrogatories, and more. But if the client fails to correct the deception, the lawyer may be forced to take matters into her own hands, even possibly having to withdraw from representation and disclose the false testimony to the tribunal. And while the rules talk about “actual knowledge,” and “reasonable steps,” neither can an attorney turn a willingly blind eye to client fabrications.
In the case of Bob Malm, I submit that Jeff “Sugarland” Chiow’s conduct failed to comport with these requirements. He knew, or had cause to know, that Bob committed perjury by claiming that Mom, or someone purporting to be her, contacted him repeatedly to set up appointments, then canceled. This simply didn’t happen, yet Bob and his attorney took no steps to correct his perjury. Moreover, the issue is material, as he cites this as one of the reasons for his assertion that Mom’s blog was really mine. Moreover, Bob separately asserted under oath that all of the answers to his interrogatories were true, so he lied a second time. Yet I have seen no evidence to suggest that Sugarland corrected his client’s lies. And then there is Bob’s fabrication that, to his knowledge, only his wife had blogged about our conflict…the list goes on. (Those new to the matter may wish to discover elsewhere in this blog the reasons behind Sugarland’s moniker.)
Into this ethical morass we have a second issue, which is how members of the Malm family handle conflict. My conclusion is that Bob often gaslights others, or engages in revisionist history. Both Leslie and Lindsey appear to have picked up this habit, although to a lesser extent. Some examples:
Leslie Malm’s alleged claim to third parties that I admitted in court that Mom’s blog was really mine, both facially ludicrous and false.
False assertions as to the genesis of our conflict.
Leslie Malm’s claim that I have stated that my mother was in her 90’s.
Fabrications in which they allege that I have misused church funds, engaged in criminal activity, and am mentally ill.
Woven as a thread throughout is juvenile behavior and ad hominem attacks by the Malms, ranging from comments about my sexual orientation, to remarks about the size of various body parts, to remarks about my mother. None of these are pretty, yet Bob and his family seemingly are all about outward appearance.
Thus, the perennial issue facing all attorneys seemingly is at play here, which is whether Lindsey and Leslie will be candid and truthful with their legal counsel. Will they admit to their behavior, or will they try to pull a fast one on legal counsel? Past conduct suggests that the answer could well be the latter.
That of course raises other questions, including whether counsel for the diocese will ignore prior courtroom fabrications on the part of Bob and the parish. While both client and counsel may well find this to be a tempting route, the long-term interests of the diocese, the parish, and The Episcopal Church suggest disclosure is the wiser course. Nor is it wise to defend a series of fabrications, misleading statements of law and fact to the courts, ad hominem attacks, and other questionable conduct on the part of Bob Malm, Sugarland Chiow, and the parish.
There’s also the reality that, in litigation, the biggest issues often are non-legal in nature, ill-suited to resolution in the courts. Bob Malm’s strategy of decreeing critics “domestic terrorists,” his ugly and false comments to the parish vestry, to church members, and to others about me (non-privileged, since I was no longer a member of the parish, and I believe made with malice), have caused lasting damage to the church, the diocese, and the bishopric, regardless of the outcome of these cases. Indeed, some of Bob’s ugliest comments were made within the church, and having met with no objection, may illustrate larger issues within the organization. Nor is it easy to defend efforts to subpoena a dying woman in violation of Pennsylvania law.
In short, no matter how long this and the related cases are in litigation, and they could well go on for years, the harm caused by Bob Malm’s misconduct and that of parish legal counsel is largely irreparable.
Next up: The ethical perils of representing multiple parties.