Wednesday, January 2, 2008

"Required" Records--Not

It has been said that courts sometimes issue opinions between Christmas and New Years in the hope that no one will notice. The District of Columbia Court of Appeals decided a case last Thursday that is notable on two grounds. First, the court heard oral argument on March 7, 2003-- thus, the case was pending for 4 3/4 years after oral argument. The attorney, who was disbarred for misappropriation, was permitted to practice for the entire time. Second, the court found that Bar Counsel failed to prove that the attorney had violated the rule that requires an attorney to maintain records of the handling of client funds for five years after final distribution notwithstanding the fact that the attorney did not have the records. The reasoning: "the evidence supports the finding that [the attorney's] loss of the ledger was unintentional...During [his] office move, some boxes were mistakenly left behind, and when [he] went back to look for them, they could not be found...A finding of reckless misconduct based on the disappearence of the ledger is not warranted."

The pertinent rule provides that "Complete records...shall be kept by the lawyer and shall be preserved for a  period of five years..." It does not say "unless the lawyer loses them." I have never seen a lost records case where the lawyer did not have an excuse, such as "I put the records in storage and was unable to pay the storage fee" or "I had a flood in my basement."

I was under the (apparently mistaken) impression that the duty to maintain required records was a strict liability offense. It remains so everywhere except in the District of Columbia. After making sure that the opinion was not issued on April 1, I was profoundly depressed as to the ethical standards for D.C. lawyers and profoundly grateful that I am no longer a disciplinary prosecutor. (Mike Frisch)

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