May 7, 2009
The Coverup, Not the Crime
From the Ohio Supreme Court:
The Supreme Court of Ohio has imposed a one-year license suspension, with the final six months of that term stayed on conditions, against the license of Cleveland attorney Jeffrey F. Slavin for professional misconduct in his handling of a personal injury action he agreed to file on behalf of a client.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that Slavin missed the statute of limitations (time limit) for filing suit on behalf of his client, and then tried to conceal his neglect by falsely telling the client the claim had been settled and paying the alleged “settlement” from his own funds. When the Cleveland Bar Association contacted Slavin in response to a grievance filed by the client, Slavin initially lied to the investigator about the alleged settlement of his client’s case. Slavin also later admitted that he had improperly commingled his own funds with moneys held for clients in his law office trust account.
The Court agreed with the board’s conclusions that Slavin had violated the state attorney discipline rules that prohibit neglect of an entrusted client legal matter; failure to maintain client funds in a separate, identifiable trust account; engaging in conduct involving fraud, deceit, dishonesty or misrepresentation; and engaging in conduct that reflects adversely on an attorney’s fitness to practice.
Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp voted to impose a one-year license suspension with the final six months stayed on condition that Slavin commit no further misconduct. Justices Paul E. Pfeifer and Terrence O’Donnell dissented, indicating that they would impose a one-year suspension but would conditionally stay the entire 12 months.
The practice pointer here is that, unfortunately, neglect or malpractice does sometimes happen. When it does, the only course is to promptly acknowledge and deal with the problem to the best of one's ability. Lying to the client only makes the situation far worse when the bar comes calling.
The court's decision is linked here. (Mike Frisch)
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You are assuming, of course, that the Bar Counsel does come calling. I wonder how often a lawyer misses a deadline like this, fakes a settlement, and no one is ever the wiser? One would have to assume that the lawyer’s deception is successful more often than not.
Missing a deadline is almost certainly a violation of RPC 1.1. On the other hand, this lawyer’s deception cost him a year of practice. Losing a year is worse than the slap on the wrist that a violation of RPC 1.1 would have earned him, but both are usually public and both injure the lawyer’s reputation which will have an affect on his practice. So if one were to examine the situation simply from the perspective of the lawyer’s own personal best interests, then probably he would be wise to engage in the deception.
Of course, lawyers aren’t gamblers assessing the odds and this isn’t the right way to examine the problem. This is a matter of ethics. A lawyer should have the ethical backbone to acknowledge his mistakes and to take the punishment.
One of the concerns I have with the far greater rate of enforcement is that we are losing track of what all of this is really about and starting to look at this as just one more area of litigation whose outcome can be predicted by a Chicago style economic analysis.
Posted by: FixedWing | May 7, 2009 1:10:49 PM