Thursday, October 9, 2008

No Privacy Right In Client Bills

The Washington State Supreme Court imposed a suspension of one year followed by probation for two years in a bar discipline matter that arose from two earlier bar proceedings. One of the earlier cases involved the lawyer's billing practices; the other involved the operation of his escrow account. The charges here related to the bar's demand for additional information regarding the lawyer's billings and violation of probation conditions. The lawyer had failed to cooperate until the bar sought an interim suspension.

The court rejected the following contention:

In connection with his challenges to the findings, Mr. Poole contends that when proving facts through circumstantial evidence, the WSBA must disprove all reasonable alternative theories offered by the attorney, and he contends this did not occur here.  He challenges conclusion of law 70, which rejects the premise that when an allegation of misconduct is supported only by circumstantial evidence, the WSBA must exclude or disprove alternative theories opposed by the attorney.  Rather, the conclusion says, the WSBA "need only produce facts from which only one reasonable conclusion may be inferred[...]" This is a correct statement of the law.

The court rejected the suggestion that the attorney had a privacy right in his client billing records that trumped the bar's information demands. Rather, the information sought was relevant to the bar investigation into his billing practices and the ongoing supervision of his disciplinary probation. The court also found that the attorney had intended to not cooperate with the bar, rejecting his argument that his conduct was grounded in a good faith challenge to the bar's authority to obtain the bills.

There was evidence of bipolar disorder but no finding that the condition had caused the misconduct. Thus, the court gave "little weight" to the condition as a mitigating factor.

If you professional responsibility professors out there are looking for a recent case that would educate students in the nature of bar discipline, this case has a lot to offer. It's worth a close read. (Mike Frisch)


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