Lawyer admonished for email exchange with 'Deliverance' taunt seeks to set aside the judgment
An Arizona lawyer who was admonished in February after a fee dispute escalated into an email feud is seeking to set aside the judgment based on a declaration from the complainant, who says he was never offended.
The admonished lawyer, Dennis Wilenchik, originally accepted discipline by consent, which included a one-year probation period during which he would have to continue with anger management treatment.
In the email exchange, Wilenchik called the client, who owned a medical marijuana consulting business, a “cheap asshole.” In one exchange, Wilenchik threatened to sue for the fee, spurring the client to write, “Bring it, bitch!”
Wilenchik responded, “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.”
Wilenchik’s lawyer, Mark Goldman, says he has asked the bar counsel to stipulate to a motion to set aside the final judgment and order. If the bar counsel disagrees, Goldman says he will file a motion to set aside before the presiding disciplinary judge who entered the order.
Senior Arizona bar counsel David Sandweiss confirms he received the request to vacate the admonition, but there has been no decision yet on whether to acquiesce.
According to Goldman, the declaration is newly discovered evidence showing that the client’s complaint to the bar was based on a false claim that the client feared he would be gang raped because of the reference to Deliverance.
In the declaration, the complaining client 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,” the client said. “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.”
The complainant goes on to say he was “in shock and disbelief” that the bar actually disciplined Wilenchik. The complainant says he made the complaint in hopes of avoiding payment of the debt. “This is because it is widely known among the public that the bar can be used by clients to torment lawyers over baseless complaints so that the clients may avoid payments of bona fide debts to lawyers,” the complainant says in the declaration. “I never in my wildest dreams would have imagined that I would have been able to so easily use the bar as my own tool.”
The complainant requests the bar rescind the admonition. He adds that he is making the declaration to set the record straight and he thinks Wilenchik is great lawyer who is a fighter for his clients. “Furthermore, I believe that publishing the incident in the media was outrageous, and I would like it to report my declaration in fairness to Mr. Wilenchik, who I have personally sought out and apologized to as well.”
Admonishment with probation is considered public discipline, but it is not published in the state bar’s Arizona Attorney magazine where more serious sanctions are listed. Goldman says the admonition was based on Arizona Supreme Court Rule 41(g), which permits discipline based on the bar’s determination of “offensive conduct.”
“This discipline is exacted upon Arizona lawyers,” Goldman says in an email to the ABA Journal, “notwithstanding a 9th Circuit case which held that California’s discipline of lawyers for engaging in ‘offensive personality’ was unconstitutional as facially vague. In the past year I have given two bar seminars to a total of about 140 lawyers where I have asked all of the lawyers to provide me with a one- or two-sentence definition of ‘offensive conduct’ adequate to put lawyers on notice as to what it means. Not one lawyer at either seminar provided me with a definition.”