Friday, February 8, 2008

No Benefit Of The Doubt

The Montana Supreme Court rejected the sanction recommendation of the court's Commission  on Practice in a case involving allegations of unethical billing practices during the course of the attorney's handling of a conservatorship. The court had issued (and provides citations to) two prior opinions that provide greater detail about the course of conduct. The court rejected a host of mitigating factors found by the commission and declined to accept the commission's "benefit of the doubt" finding that the lawyer had earned the charged fees. The court found such a benefit could not be sustained because his "billing records, the various fee agreements and [his] shifting explanations for his accounting practices raise more questions than provide answers."

The court's discussion of the rejected "mitigating factors" is particularly interesting. The commission treated as mitigation that the matter was initiated by opposing counsel. Apparently, the commission questioned opposing counsel's motives and suggested that he sought a tactical advantage. The court would have none of it: counsel had "little choice in the face of this avalanche of avarice" and should be commended for compliance with the duty to report. The "mitigating factor" that the attendant adverse publicity had destroyed the lawyer's practice was like killing your parents and asking for mitigation as a "poor orphan child."

The court imposed a 60 day suspension along with a public censure. The commission had recommended just the censure. (Mike Frisch)

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I really hate the excuse that the issue was raised by the opposing attorney, or the opposing client. The bar does not serve to discipline attorneys who only hurt their own clients. And what of the duty of the attorney to report observed violations? Are we then supposed to question the tactical motives of the one who fulfills that duty?

I think one of the things the bar often does to lose people's confidence in self-regulation is to tell a litigant (the opposing client) who complains to the bar that they are just spiteful or a sore loser. That person immediately perceives it as about protecting the lawyer, not investigating wrongs. If there is no basis for the client's complaint, so be it. But if there is, then who cares that the client had some personal reason to raise it?

Posted by: Alan Childress | Feb 8, 2008 4:14:39 PM

Alan's point is well taken. I have seen more times than I can count a "blame the victim" attitude by decision-makers in bar discipline cases. Also the "blame bar counsel" dodge. Here, I love the part of the opinion where the court directs its commission to read the record!

Posted by: Mike Frisch | Feb 9, 2008 4:55:53 AM

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