In the Matter of Maloney and Virsik

Citation: 4 Cal. State Bar Ct. Rptr. 774 (Review Dept. 2005)
Respondents: Patrick Joseph Maloney, Jr. (admitted 1969); Thomas Steven Virsik (admitted 1997)
Disposition: One-year stayed suspension; two years’ probation; 90 days’ actual suspension (Maloney) and 60 days’ actual suspension (Virsik)

Overview

This case arises from respondents’ representation of a dissident tribal faction (Round Valley Nation – “RVN”) in an intra-tribal power struggle against the officially recognized governing body (Round Valley Indian Tribes – “RVIT”). While representing a defendant in a harassment lawsuit brought by RVIT, respondents attempted to engineer dismissal of the case by misrepresenting to the Superior Court that RVN had lawfully replaced RVIT and now controlled the litigation.

The Review Department found that respondents committed multiple acts of moral turpitude by knowingly submitting pleadings permeated with half-truths, omissions, and outright misstatements of fact and law in an effort to secure dismissal of the action.

Facts

RVIT was the federally recognized tribal government under a 1994 Constitution approved by the Bureau of Indian Affairs (BIA). In early 2000, RVN—a dissident faction—held a purported “constitutional election” seeking to replace RVIT’s governing authority.

The election did not comply with required federal procedures. The BIA refused to recognize RVN as the governing authority and reaffirmed recognition of RVIT. Despite this, RVN declared victory and attempted to assume control of tribal assets, employees, and legal matters.

Respondents represented RVN and simultaneously represented Carlino Bettega, a defendant sued by RVIT for workplace harassment. In an effort to terminate that lawsuit, respondents:

• Filed multiple Requests for Dismissal falsely claiming authority to act on behalf of RVIT.
• Signed pleadings under penalty of perjury asserting that RVN had lawfully replaced RVIT.
• Filed a Notice of Change of Name attempting to substitute RVN for RVIT as plaintiff.
• Represented to the court that prior counsel for RVIT had been terminated.
• Signed documents purporting to represent multiple parties with conflicting interests.

The Superior Court rejected these filings and found that respondents had engaged in a “surreptitious attempt…to dismiss the action and to perpetrate a fraud upon the court and opposing counsel.” The court imposed $2,000 in sanctions.

Charges

Count One – Moral Turpitude (§ 6106)

Knowingly making repeated misrepresentations to the Superior Court in order to secure dismissal of litigation.

Count Two – Misleading a Judge (§ 6068(d))

Dismissed as duplicative of the § 6106 violation.

Count Three – Failure to Obey Court Order (§ 6103)

Dismissed by the Review Department due to insufficient evidence that respondents knowingly violated a final binding order.

Findings

Moral Turpitude Found

The Review Department held that respondents’ conduct constituted moral turpitude. Their pleadings were not merely negligent but part of a deliberate litigation strategy to create a false impression that RVN had lawful authority. The court emphasized:

• Misrepresentations under penalty of perjury.
• Omissions of material facts, including BIA non-recognition.
• Affirmative false statements regarding party authority and substitution of counsel.

The misconduct demonstrated a disregard for professional responsibilities as officers of the court.

Aggravation

• Multiple Acts: Pattern of misconduct over several months.
• Lack of Candor: Evasive and inconsistent testimony during disciplinary proceedings.
• Harm to Administration of Justice: Required additional court intervention and sanctions proceedings.
• Uncharged Misconduct: Additional misleading statements beyond those specified in the NDC.
• Overreaching (Maloney): Attempted to assert unconditional authority for RVN despite known disputes.
• Conflict of Interest: Simultaneous representation of opposing parties in the same litigation.
• Indifference to Rectification: Continued justification of conduct despite contrary authority.

Mitigation

• No Prior Discipline: Particularly significant for Maloney (31 years of practice).
• Strong Good Character Evidence.
• Community and Pro Bono Service.
• Relative Culpability: Virsik, as a junior associate with less than three years of practice, was less culpable than supervising partner Maloney.

Sanctions (Simplified Overview)

Key Takeaways

• Misleading pleadings—even if unsuccessful—constitute moral turpitude.
• Concealment and half-truths are treated the same as affirmative falsehoods.
• Signing pleadings under penalty of perjury heightens culpability.
• Simultaneous representation of conflicting parties significantly aggravates discipline.
• Overzealous advocacy does not excuse deception of the court.