January 7, 2008
The District of Columbia Board on Professional Responsibility issued a stack of end of the year reports that I am wading through. It appears that the most interesting case is In re Bach, where the board recommends ("Although we have misgivings...")that the lawyer be disbarred for misappropriation. The case involves a lawyer who took fees without court approval for legal work as a conservator. He thus engaged in unauthorized use of entrusted funds. He "admitted that he deliberately paid himself from the Estate funds prematurely, knowing it was a violation of applicable rules" and the board could not find a negligent violation. Under the rule adopted en banc in In re Addams, disbarment must follow as night follows day for intentional or reckless misappropriation.
But, as one of my old law profs used to say, hold the phone. The board does not like the Addams rule. It expresses concern about the "draconian sanction"and "urges that sanctioning [the attorney] with suspension, plus whatever discipline the Probate Court deems appropriate under the circumstances, would more accurately reflect the nature of his misconduct, without suggesting to the public any tolerance of misappropriation."
Further, the attorney is not presently represented by counsel. There is a provision in the D. C. rules that permits the board to appoint counsel, compensated through bar dues, to represent "indigent" lawyers in bar discipline cases. Watch to see if the board appoints counsel in this case (presumably a former board member) to argue its pet issue of lowering standards in misappropriation cases. If they appoint counsel, the fancier the pedigree, the more passionate the hope of overturning Addams. (Mike Frisch)
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