United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.
March 10, 2017-upon finding that attorney Miles L. Mitzner
had misstated evidence in this case and noting that similar
findings had been made in at least nine other cases-the Court
directed Mr. Mitzner to show cause for why sanctions should
not be imposed upon him. Mr. Mitzner was expressly advised
that the Court would consider his response in determining
whether, pursuant to Local Civil Rule 83.6(c), the matter
should be referred to the Chief Judge of this Court for
discipline on a complaint of professional misconduct.
submission of Mr. Mitzner's written response, the Court
on May 9, 2017, held a hearing. Mr. Mitzner appeared in
person. Counsel for Defendant appeared in person and by
Court has high standards for the attorneys who practice
before it. Those standards include, at a minimum, compliance
with the obligations set forth in the Oklahoma Rules of
Professional Conduct. See Local Civil Rule 83.6(b).
Those rules impose on lawyers a duty of candor to the Court,
prohibiting the lawyer from knowingly “mak[ing] a false
statement of fact . . . to [the Court] or fail[ing] to
correct a false statement of material fact . . . previously
made to the [Court] by the lawyer.” Okla. R. Prof'l
Conduct 3.3(a)(1), Okla. Stat. tit. 5, ch. 1 app. 3-A;
see also Fed R. Civ. P. 11(b) (stating that an
attorney who presents and signs a written motion or other
paper to a court is certifying to the court “that to
the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances, ” “the factual contentions”
in that motion or paper “have evidentiary support or,
if specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery”).
Mitzner's conduct in this case does not live up to these
standards. Here, as in numerous other cases in which he has
been cited for misrepresenting, misstating, or
mischaracterizing evidence, Mr. Mitzner has exaggerated the
evidence to the point of untruth. In discussing evidence of
limitations caused by Plaintiff's broken right ankle, Mr.
Mitzner purports to quote Dr. Lancaster's summary of Dr.
Burke's report as follows:
rt ankle has decreased ROM w/ chronic subjective pain; toe
walking is weak on the rt and he not able to heel walk, walks
with limp; carries a cane in his rt hand for support.
Br. in Chief (Doc. No. 12) at 3 (citing Admin. R. (Doc. No.
10) at 63). Dr. Lancaster's actual summary reads as
Rt ankle has decrease[d] ROM w/ chronic, subjective pain.
There is no evidence of swelling at this exam. No evidence of
muscular atrophy or hypertrophy. No crepitus or effusion
..... [Lower extremity] strength is 5/5 bilaterally .....
[Straight leg raising] testing is negative ..... Toe walking
is weak on the rt and he is not able to heel walk.
[Plaintiff] ambulate[s] with a stable and safe gait at an
appropriate speed without the use of any assistive devices,
w/ a slight limp. He carries a cane in his rt hand for
R. at 63 (emphasis added). Referencing the Court's
previous statement that he had omitted material statements
from this quotation without ellipses or other indication, Mr.
Mitzner explains that he did not fully understand the meaning
of ellipses. More broadly, Mr. Mitzner explains that he does
not believe that the omissions he made to the quotation
caused it to be inaccurate. These explanations do not
suffice. The statement that Plaintiff “ambulate[s] with
a stable and safe gait at an appropriate speed without the
use of any assistive devices” was critical to the issue
being raised, and its omission altered the meaning of the
quotation. Likewise, the difference between a “slight
limp” and a “limp” is easily understood,
and making that alteration reflects more than grammatical
misstatement of evidence is serious but perhaps could be
accepted as an unrepresentative error in judgment if made in
isolation. The problem, though, is that it is but the latest
in a series of similar misstatements. At this point, all of
the magistrate judges in this Court (before whom Mr. Mitzner
regularly practices), at least one of the district judges,
and the Court of Appeals for the Tenth Circuit have noted
instances in which Mr. Mitzner failed to accurately describe
facts relevant to an argument he was making. See,
e.g., Kirkpatrick v. Colvin, 663 F. App'x
646, 650 n.2 (10th Cir. 2016) (noting that Mr. Mitzner had
“misrepresent[ed] the record” by stating that
health conditions that existed prior to a corrective surgery
were present after the surgery); Kirkpatrick v.
Colvin, No. CIV-14-349-F, 2015 WL 5666748, at *7 (W.D.
Okla. Aug. 24, 2015) (R. & R) (same), adopted,
2015 WL 5677288 (W.D. Okla. Sept. 24, 2015); Anderson v.
Berryhill, No. CIV-16-865-STE, 2017 WL 1436482, at *8
(W.D. Okla. Apr. 21, 2017) (noting that Mr. Mitzner had made
the “untrue” statement that a physician opined
that the plaintiff's headaches prevented her from
working); Cadenhead v. Colvin, No. CIV-15-1121-F,
2016 WL 7852535, at *5, n.7 (W.D. Okla. Dec. 19, 2016) (R.
& R.) (noting that Mr. Mitzner had “mispresent[ed]
the record” by suggesting that a physician opined that
the plaintiff was limited in his ability to climb stairs,
when he did not, and then arguing that the administrative law
judge (“ALJ”) erred by not considering that
limitation), adopted, 2017 WL 239637 (W.D. Okla.
Jan. 19, 2017); Bivins v. Colvin, No. CIV-16-84-M,
2016 WL 5947378, at *5 (W.D. Okla. Sept. 15, 2016) (R. &
R.) (noting that Mr. Mitzner had “misstate[d]”
the record by suggesting that the ALJ had found that the
plaintiff was only limited to simple work rather than the
multiple mental health limitations actually found by the
ALJ), adopted, 2016 WL 5947341 (W.D. Okla. Oct. 13,
2016); Moen v. Colvin, No. CIV-15-756-M, 2016 WL
4772478, at *3 (W.D. Okla. Aug. 19, 2016) (R. & R.)
(noting that Mr. Mitzner had “misstate[d] the
facts” by stating that a medical expert reiterated
post-hearing that additional evidence was needed when the
expert actually stated he had sufficient evidence to form an
opinion), adopted, 2016 WL 4769375 (W.D. Okla. Sept.
13, 2016); Cousin v. Colvin, No. CIV-15-150-D, 2016
WL 355494, at *2 (W.D. Okla. Jan. 29, 2016) (noting that Mr.
Mitzner had “misstate[d] the ALJ's findings”
by suggesting that the ALJ had found that the plaintiff was
only limited to simple work rather than the multiple mental
health limitations actually found by the ALJ); Mueller v.
Colvin, No. CIV-13-805-M, 2014 WL 3419313, at *3 (W.D.
Okla. July 11, 2014) (noting that Mr. Mitzner had
“misrepresent[ed]” the record by stating that an
ALJ had inconsistently given “great weight” and
“some weight” to the opinions of agency
physicians, when the ALJ in fact gave “great
weight” to the physicians' opinions regarding the
plaintiff's mental limitations and “some
weight” to their opinions regarding the plaintiffs
physical limitations). Although all of these judges and their
staffs have uncovered the actual facts and made their
decisions based on those facts, it remains the case that Mr.
Mitzner in making arguments based on exaggerations and
mischaracterizations of fact is failing his clients.
all of the above, the Court declines at this time to sanction
Mr. Mitzner or find that he has violated Oklahoma Rule of
Professional Conduct 3.3(a)(1) or Federal Rule of Civil
Procedure 11(b). But this pattern cannot continue.
Mr. Mitzner is admonished for failing to meet the high
standards and obligations for the practice of law in the
Western District of Oklahoma and is advised that any future
similar issues will result in severe consequences, to include
referral to the Chief Judge for disciplinary action pursuant
to Local Civil Rule 83.6(c). To the extent that Mr. Mitzner
is aware of any filing previously made that includes a
misrepresentation of evidence, he is reminded of his
obligation to correct that filing immediately; in any event,
this Court will not accept as an excuse that any such
misrepresentation occurred prior to the entry of this Order.
Clerk of Court is directed to distribute this Order to each
of the magistrate judges ...