Thursday, July 26, 2007

Intentional Fabrication Merits Suspension

A lawyer representing in passenger who had suffered minor injuries in a two car traffic accident sent a letter to the insurance company for the other driver that contained "fabricated testimony...from a nonexistent transcript" in which the driver purportedly admitted responsibility for the accident. The insurer did not rely on the false transcript and eventually settled the case.

The Ohio Supreme Court rejected the proposed stayed suspension recommendation of the Board of Commissioners on Grievances and Discipline and suspended the attorney for six months. The case was more serious than prior cases "involving inadvertence or haphazard corner-cutting." Despite significant mitigating evidence, an actual suspension was required in the case. Two justices dissented, favoring a suspended sanction.

Obviously, there is a world of difference between an actual and a stayed suspension. A suspension of any length can be devastating to a sole or small firm lawyer. Courts and boards throughout the country struggle with line-drawing fine distinctions in dishonesty cases in particular. I do favor the policy approach that actual suspension is necessary where the evidence establishes intentional dishonesty for advantage in a practice setting. That seems an appropriate bright line rule to me.

On the other hand, there were weighty mitigating factors: no previous discipline over a long career, full cooperation, no financial loss, and that the lawyer had "apologized and accepted responsibility for his misdeeds, which occurred during a stressful period, and he has established his excellent character and reputation apart from this one isolated incident of wrongdoing."

Cases like this one can be emotionally charged and difficult for disciplinary counsel as well as for the accused attorney. I have handled any number of cases, both involving dishonesty and neglect, where one would have to be a robot to have no sympathy for the lawyer. You watch someone sob on the stand as they admit their failings and shortcomings. After hearing every imaginable excuse (and a few you could not possibly imagine), you want to hug someone who actually owns up to the misconduct. For courts and boards, these can be the hardest cases.(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2007/07/intentional-fab.html

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