Tuesday, March 10, 2009

Sorry, I Lost It

A Louisiana hearing committee agreed with a joint proposal for sanction and recommended a six-month stayed suspension in a case where the lawyer was hired to seek removal of a material man's lien. The lawyer received a fee advance of $2,000 but did not know what to do on the merits. The client sought return of the fee and file without success. A bar complaint resulted in the hearing. The committee finds that the lawyer did not make the fee arrangement clear, could not account for his charges and thus had violated Rules 1.5 and 1.16.

Interestingly (and, I think, wrongly), the committee found that the lawyer's assertion that he had stored the client file in his attic and could not find it showed that he had not violated Rule 1.16 with respect to the return of the file. The hearing committee concludes that loss of the file is a defense and that the loss must be intentional. Such an interpretation in effect negates an important client protection interest articulated in the rules governing withdrawal from representation. While loss of the file to fire or flood may mitigate the violation to a de minimus level, it does not extinguish the strict liability obligation to hold and return the client file. Losing the file "in good faith" should not be a basis to find no ethical lapse, even if it would not change the result here. (Mike Frisch)


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Having devoted effort to proving that today's State Bar law is based, oppressively, on the self-contradictory concept of strict ethical liability (see, for example, http://tinyurl.com/bvvl3b), I'm glad for an a State Bar establishment admission.

Posted by: Stephen R. Diamond | Mar 10, 2009 2:32:54 PM

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