Thursday, January 3, 2008
As a follow up to yesterday's post on the Rule 1.15 record-keeping decision in the District of Columbia, here's the link to the report of the Board on Professional Responsibility in the Cloud case. The Board, like the court, cites no case for its remarkable holding that it is a defense to a charge of failure to maintain required records to have lost the records. There also seems to be no understanding of the importance of proper records to protect the interests of clients and third parties in their own funds. It is further worth noting that the Bar's investigation (with notice to the accused lawyer) began well before the "loss" of the records in question. I suppose the only way Bar Counsel can prove the violation now is to produce evidence that the attorney intentionally destroyed the required records by calling a witness to the bonfire. Such evidence will be difficult to come by.
Question: if a lawyer "ethically" loses required records, is the lawyer thereafter absolved from the duty to render an accounting to the person entitled to the entrusted funds?
I wonder what a criminal court would think of "I lost my records in an office move" as a defense to a criminal failure to maintain required records charge? How about the IRS in an audit? Not much, I suspect. (Mike Frisch)