Friday, July 6, 2007

Ordinary Circumstances

The District of Columbia established a strict rule against intentional or reckless misappropriation of entrusted funds. Disbarment is imposed absent "extraordinary circumstances." Since the adoption of the rule by the Court Of Appeals in the early 1990s, the only such circumstances have been where the misconduct was caused by alcoholism, drug addiction or mental health problems and the attorney has been substantially rehabilitated.

In a recent recommendation, the Board on Professional Responsibility has found that the misappropriation was negligent, but if the court disagrees, would find extraordinary circumstances. There are concurring opinions that acknowledge that the misconduct was intentional, but would find extraordinary circumstances that warrant a lesser sanction. The board's chair dissents, recognizing that disbarment is required by precedent.

I search this recommendation in vain for circumstances that make this case any different from past cases where disbarment was ordered. The attorney took a fee in a conservatorship matter without obtaining court approval as required by statute. His explanations for doing so did not make sense: he claimed that he was motivated by a desire to maintain the ward's eligibility for medicaid benefits but took far more than necessary to achieve that objective. He was clearly aware that court approval was a precondition to his paying fees to himself.

When I was at Bar Counsel, we fought hard to persuade the court to adopt the strict rule (the attorney who won the case en banc was my friend Sam McLendon). The board has long pushed back against the precedent. This decision is latest attempt to create an exception that will swallow the rule.

I posted an analysis of the hearing committee report in this case on October 19, 2006 under the title "An Altruistic Theft." (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2007/07/the-district-of.html

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