Joshua Schiller’s January arrest on domestic violence charges seemed destined to be dropped. Before the news even got out, Schiller’s wife was already saying the whole thing was a misunderstanding and it’s difficult to bring a case when the alleged victim is saying nothing happened. Add in a police report that offered little in the way of allegations of serious injury and it was highly unlikely that prosecutors would proceed with charges.
Which is exactly what ended up happening.
Schiller’s attorneys released this statement:
“We are clearly pleased, though not surprised, by the decision to drop the charge in light of the facts and circumstances. The district attorney dismissed the case after a thorough review in the interests of justice because there was no case to prove. As we’ve stated from the beginning, there was no physical harm or instance of domestic violence in this case. Mr. and Ms. Schiller are glad to put this behind them.”
Schiller had already cleared the firm’s internal investigation conducted by Danya Perry of Perry Guha that found no evidence of physical abuse.
But as this case closes, it should remain a case study for how firms deal with abuse allegations against partners. As lawyers, firms don’t want to prejudge a defendant. Yet, as businesses, firms have obligations to employees and clients to treat these allegations seriously. Honoring both impulses is difficult.
In this case, the firm quickly released this statement back in January:
The Firm has been made aware of recent events related to our partner, Josh Schiller. While we have been informed by him and his wife that this was a misunderstanding, the firm will be conducting its own review to better understand what happened. While that review is ongoing, Josh has asked for a leave of absence to focus on his family, and we have agreed to give him this time.
Producing a timely official response announcing an independent inquiry is important. It assures everyone that the firm takes the allegations seriously and recognizes that the high burden of proof that applies to the criminal justice system is not necessarily the standard that applies to the duty of representing the firm. An ideal response would include a more direct condemnation of abuse as a general matter up to and including a strong statement that it has no place within the firm. This statement also put the entire ownership of Schiller’s leave on him, phrasing it as his request that the firm accepted. A better response for future firms in this situation would be to announce that the partner was put on leave by the firm or, at best, that the partner and firm mutually agreed to a leave.
Hiring outside counsel to conduct the investigation was another sound decision. Perry is a prominent white collar litigator with a background at the SDNY U.S. Attorney’s Office as Deputy Chief of the Criminal Division. That’s exactly the resume a firm should seek out in conducting an internal review.
Some controversy emerged around this matter when news broke that Schiller was continuing to circulate conflict checks, suggesting he never stopped generating business while supposedly on leave. As we’ve pointed out before, putting aside the underlying claims, showing a lack of respect for the process undermines the firm investigation. The firm rejected the claims about conflict checks, which may resolve the issue, but it all goes back to the problem of phrasing the leave as the attorney’s decision as opposed to the firm’s. Clear boundaries need to be set for any leave.
Hopefully firms will not have to confront the situation of partners accused of serious out-of-the-office crimes. But realistically something like this is going to come up again and whether or not the allegations ultimately result in criminal action, what happened here should be top of mind when firms craft their responses.
Earlier: Biglaw Partner Arrested On Domestic Violence Charge
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.