Thursday, July 17, 2008

A Difference Of Opinion On Sanction

An attorney who had claimed to represent a person without authority and engaged in a conflict of interest by representing the estate of an automoblie accident victim while also representing the person who had caused the accident in the related criminal matter received two reprimands from the Supreme Court of Washington.

A dissent decries the leniency and the majority's characterization of the misconduct as negligent. From the dissent:

Mark Stansfield is a long-time attorney in the small town of Quincy, Washington, where, in his own words, "a triple homicide is rare." Hearing Transcript (HT) at 122. After one such rare occurrence, Stansfield probated the estate of one of the decedents and
discussed a possible wrongful death claim with that decedent's widow.  He
then represented the criminal defendant driver charged with causing the
fatalities.  He also claimed to represent the impoverished Guatemalan-
residing widow of a different decedent for over three months without her
consent, even filing a lien for attorney fees against her husband's estate and
thus delaying her receipt of sorely needed insurance proceeds.  Because the
majority holds Stansfield acted negligently, and not knowingly, and
accordingly reduces his penalties, I dissent.

The dissent would impose a six-month suspension, the sanction that had been proposed by the Disciplinary Board.

Question: may two reprimands be fairly characterized as a slap on both wrists?

If you are a student of bar discipline, you may have noted the importance of labels. Labels rule here--if you call the conduct negligent, you are free to impose a light sanction. If you call it intentional, a harsher result is required. This is particularly true in cases involving theft of client funds, where the intentional  label often results in disbarment and a more favorable intent finding can draw much lighter discipline. (Mike Frisch)

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