Saturday, April 19, 2008

Like Stealing

An Illinois Hearing Board has recommended disbarment in a case involving a single count of neglect and failure to return an unearned fee. The board found that the lawyer had never intended to perform the legal services for which he had been paid and that his conduct was no different from theft or conversion:

"While we have found that Respondent neglected one client matter, we also find that this case has elements of an attorney who abandoned his practice and stole money from his clients. This is not a simple case of neglecting a client matter. Based on the facts, we can reasonably infer that Respondent had no intention of representing the Castellanoses. Instead, he lied to them and essentially stole $5,000. Respondent simply took the money that was supposed to be used for his legal fees, and disappeared, never to be heard from again."

(Mike Frisch)

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I am no fan of lawyer incompetence, neglect, or 'conversion,' but I believe in gradation of punishments. This is way too harsh a penalty for taking what is a fairly common client complaint (most of what a bar board will investigate, I suspect) and then 'inferring' improper motive and then equating it to stealing client funds, ergo disbar. Just as a matter of practicality, this leap could swamp their investigation and processing staff because they are not making the tough distinctions they are expected to make.

And what accused lawyer will just admit the lapse and make restitution if the accusation has become so serious that they are courting disbarment? I mean after all, with true conversion of client funds by borrowing from a trust account, repaying the money is not much of a mitigating factor to the tough sentence that traditionally has been leveled. So if attorney fees are treated the same as client trust funds, no apology or restitution should matter that much, assuming one can "infer" the prior motive to be improper.

Here, neglect of a client matter is treated as if it is taking client money out of a trust account. It is not the same.

Posted by: Alan Childress | Apr 19, 2008 7:37:57 AM

Note that the Administrator's proposed sanction was a six-month suspension.

Posted by: Mike Frisch | Apr 19, 2008 8:07:12 AM

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