January 18, 2008
A Good Bet
A Nebraska attorney with a practice involving juvenile and family law agreed to represent a client in "the first and only personal injury matter [the attorney] has handled." The attorney filed suit but failed to serve the defendant, the case was dismissed and the statute of limitations on the claim expired. The client filed a bar complaint and a malpractice suit that settled for $2,500. Also, the lawyer's escrow account went out-of-balance as a result of two bad checks from clients. The referee found no misappropriation. There were mitigating factors involving a series of family-related "personal challenges" and a large number of favorable letters from juvenile judges and lawyers.
The Nebraska Supreme Court struck, in my view, the correct balance between competing interests in a bar discipline case by imposing a public reprimand and 18-month period of monitored probation. The question of whether and to what extent an attorney should venture away from his or her area of expertise was an issue that I regularly dealt with as a small firm lawyer. In terms of the result, monitored probation is far preferable to unsupervised probation, which likely is no probation at all. This decision suggests to me that there is a high degree of likelihood that probation will succeed.
The court had less sympathy for an attorney who botched the first postconviction case that he had handled. The attorney failed to file the action for almost two years, ignored disciplinary counsel and delayed returning unearned fees. The court ordered a suspension of 120 days rather than the 30 day suspension proposed by the referee. (Mike Frisch)
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