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Two Alameda, Calif., lawyers face temporary suspensions for trying to help stage what State Bar judges called a “bloodless coup” by a dissident faction on a Northern California Indian reservation. The State Bar Court has recommended that Patrick Maloney Jr. be suspended from practicing law for 90 days and his associate, Thomas Virsik, for 60 days. The Bar says the two tried to persuade a judge that they represented a new government for the nine tribes on the Round Valley Indian Reservation in Mendocino County, Calif. Both were also placed on two years’ probation. “Given the magnitude of their deception and the breadth of their actual knowledge about the true state of affairs surrounding the intra-tribal battle,” Judge Judith Epstein wrote, “we find no basis on this record to conclude that respondents had an honest or reasonable belief in the truth and accuracy of their statements to the superior court.” Maloney and Virsik represented the Round Valley Nation, a splinter group engaged in a power struggle with the Round Valley Indian Tribes. The dissidents allegedly wanted to solve the non-gaming tribes’ poverty and social problems by “revitalizing their culture, customs and traditional tribal law.” The reservation, formed in 1856, comprises members of the Pomo, Konkau, Little Lake, Nomelaki, Achornawi, Potter Valley, Redwood, Wailaki and Yuki tribes. Forty-four members of the rebel faction signed a declaration of independence in February 2000, then claimed victory after tribal elections two months later. However, the ruling council repudiated the election, calling it a “sham,” and the federal Bureau of Indian Affairs rejected its legitimacy. Even so, Maloney and Virsik continued to represent the “elected” government as the legitimate tribal authority by trying to appropriate the true government’s bank accounts and other assets and by attempting to dismiss a suit against Carlino Bettega, a member of the dissident group accused of employment harassment. They even tried to terminate the contract of California Indian Legal Services, which had represented the tribes for nearly 30 years. A trial court judge eventually hit Maloney and Virsik with $2,000 in sanctions. Maloney, entitled to practice in California since 1969, and Virsik, since 1997, argued in State Bar Court that they had acted in good faith and believed that their actions were correct and legal. Maloney also had a sterling lineup of character witnesses, including Elihu Harris, the Berkeley lawyer who is the former mayor of Oakland and chairman of the Assembly Judiciary Committee for 12 years. The State Bar Court said that testimony went “a long way” toward explaining Maloney’s and Virsik’s actions. But it still wasn’t enough. “Time and again, respondents chose to expressly or impliedly create a false picture of the true state of affairs and to ignore contrary facts and legal position,” Epstein wrote. “Respondents had numerous opportunities to correct their misleading statements, and yet they chose not to do so.” Judges Ronald Stovitz and Madge Watai concurred in the ruling, which was issued a week ago and made public Wednesday. The court’s recommendation now goes to the California Supreme Court, which makes the final decision. The court also has authority to increase or reduce the amount of discipline. The decision was made on review from a State Bar Court hearing judge, who had recommended 90 days’ suspension for Virsik and 45 days for Maloney. The two defendants had asked to be exonerated, and the State Bar had sought an increase to six months’ suspension for both. Neither Maloney nor Virsik could be reached for comment Thursday, but their lawyers felt that the punishment wasn’t warranted. “If you read through all of that [ruling],” said Oakland solo practitioner Spencer Strellis, who represented Maloney, “you come to the conclusion that, in good faith, the parties did this, and maybe they shouldn’t have. But it was not for any personal gain of their own. It was to represent a minority group whose interests were being stepped on.” San Francisco solo Jonathan Arons, who represented Virsik, said that “if anything, it was a negligent misrepresentation, not intentional.” He also said the trial court never had the jurisdiction to hear the underlying tribal dispute in the first place. “My belief is that Mendocino County said, ‘We had jurisdiction because the tribe gave it to us.’ That’s not the grounds,” Arons said. “You really can’t waive sovereignty like that.” Both Arons and Strellis said they weren’t sure whether they would appeal the ruling or seek reconsideration. Esther Rogers, the deputy trial counsel who represented the State Bar, expressed disappointment that the court’s review department hadn’t increased the suspensions. “It’s our belief that, based on precedent, six months was appropriate,” she said. However, Rogers praised the court’s overall finding that Maloney, as the partner in the firm, was more responsible for the wrongdoing than Virsik. Shannon Barney, chairman of the Round Valley Indian Tribal Council, couldn’t be reached for comment. The ruling is In re Maloney, 05 C.D.O.S. 529.

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