Friday, February 22, 2008

Proof Of Dishonesty

There is an interesting bar discipline decision from the Illinois Review Board that recommends a 18 month suspension based on multiple findings of misconduct. The board sustained a finding below that the attorney had not charged an unreasonable fee. The lawyer had agreed to a $100 per hour fee with a 25% contingency. After he was fired, he sued the client asking for hourly fees of $275  and obtained judgment for over $12,000. The board concludes that the judgment was a bar to the unreasonable fee allegation: "the Administrator presented no evidence indicating that $275 per hour...was per se unreasonable." Maybe not, but it was in direct violation of the lawyer's obligation to charge what he had agreed to charge.

In another matter, the attorney violated the duty of confidentiality in a motion to withdraw from representation:

" In advising the court that she had retained new counsel, Scott [the client]complained that Respondent was no longer acting in her best interests, was inconsistent in his facts and advice, could not be trusted and might not be competent. In an effort to defend himself against these charges, Respondent attached his affidavit to his motion to withdraw as Scott’s attorney, which included the advice that he had given her and reasons for his change in strategy, Scott’s responses and later in the case, her refusal to communicate with him, Respondent’s version of the conflicts that arose between them and his belief that Scott had not been entirely honest about the value of her property or her credit rating."

The board rejected the contention that the "self-defense" provisions of Rule 1.6 permitted the disclosures.

Finally, there was an issue of dishonesty charged pursuant to Rule 8.4(c). As we all know, there is no requirement that the dishonesty relate to the practice of law or adversely reflect on fitness to practice. Rather, the rule requires honest behavior in both professional and personal dealings. Here, the lawyer had bounced a check tendered to pay a filing fee. He had a record of prior bad checks. The hearing board found credible the lawyer's testimony that "he was unaware of the balance of the account at the time he tendered the check" and rejected the dishonesty charge. The Review Board was not buying:

"The Administrator’s argument that a violation of Rule 8.4(a)(4) may be found when an attorney’s conduct is so careless or reckless as to be considered knowing is correct, however. In re Jakubowski, 93 CH 455 (Review Board, May 10, 1996) Respondent’s petition for leave to file exceptions denied; Review Board approved and confirmed, No. M.R. 12728, (September 24, 1996). Black’s Law Dictionary defines "recklessness" as "[c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk." Black’s Law Dictionary (8th Ed. 2004). That is exactly what has happened in this case.

Respondent apparently believed that as long as he did not actually know the balance of his account, he could write checks with impunity. Despite a lengthy history of returned checks and overdrawn accounts, Respondent acknowledged that his bookkeeping "wasn’t wonderful at that point." While he kept a running balance in his account, he agreed that "apparently [it was] not good enough." Bank records from the 8½ months before he wrote the check to the Circuit Court show a confusing array of overdraft charges that resulted in part from fourteen checks written by Respondent that could not be cashed when first presented for payment, due to a lack of funds.

By tendering his check to the Clerk of the Court, Respondent implicitly represented that it would clear when it was presented for payment."

There is a dissent that would uphold the finding of no dishonesty as a finding of fact that the review board must accept. (Mike Frisch)

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