Thursday, December 14, 2006

Too Lenient for Misappropriation?

by Mike Frisch

The Alaska Supreme Court imposed discipline based on a stipulation that suspended the attorney for three years but stayed one year of the suspension. Chief Justice Fabe dissented as to the sanction, noting that the Board of Discipline had rejected Bar Counsel's report finding that the accused attorney did not misappropriate client funds. The Chief Justice would have imposed the full three year suspension for the misappropriation. The delay in disbursing the client's seetlement proceeds prevented the client from refinancing her house and "wasn't the first non-sufficient fund check written in this six-month period."

The case raises a question about discipline by consent that I want to address at greater length in the context of pending proposed revisions to the procedural rules in District of Columbia bar discipline cases. Consent discipline is a useful tool in the swift resolution of allegations of misconduct but should not minimize misconduct to the detriment of the protection of the public from unfit lawyers. While I do not know the particulars of this case, the concern that the sanction agreed to by Bar Counsel was too lenient seems to motivate Chief Justice Fabe's dissent.

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