Wednesday, May 27, 2009

A Loan At Last

The Illinois ARDC has filed a disciplinary complaint against an attorney who had loaned a woman he was dating $20,000 in exchange for a promissory note that provided for monthly repayments. He then married the borrower, who later sought divorce after seven years of marriage.

According to the charges, the attorney had sold the note to his cousin for $5,000 but thereafter falsely claimed to have retained his interest in the note, for which the wife paid him $10,000 in the divorce settlement. The charges contend that the attorney engaged in dishonesty and other misconduct, and specifically allege a series of false interogatory answers in the litigation. (Mike Frisch)

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Query whether this should really be published at this point? This is just a complaint. There has not yet been an adjudication of the allegations contained in the complaint. In fact, in most jurisdictions, this would still be confidential. Surely it would be more appropriate to hold off on this until there has been some sort of adjudication of the charges?


Posted by: FixedWing | May 27, 2009 2:25:35 PM

I appreciate the comment from FixedWing, but respectfully disagree. I believe that bar discipline information should be public from complaint to final disposition so that the public can evaluate whether self-regulation really works. I have always endeavored to make it clear that a complaint involves unproven allegations and avoid putting the accused lawyer's name in the post unless there is a reason to do so.

Posted by: Mike Frisch | May 28, 2009 4:04:46 AM

stephen - i think that in most jurisdictions the proceeding is public after formal charges are filed - the aba model is for public proceedings after formal charges - there is, in almost every jusisdiction i beleive, a required finding that probable cause exists before formal charges can be filed - almost all bar prosecutors are very careful and conservative about filing formal charges - fred

Posted by: fred ours | May 28, 2009 12:24:39 PM

I spoke too quickly when I said that in most jurisdictions a complaint such as this would still be confidential. I agree that it would not be confidential once probable cause had been found. I also agree with Mike that nor should the complaint be confidential. Public scrutiny is essential to keep the process honest. In fact, I moved the court to lift the confidentiality in the complaints that I am involved in specifically for that reason. Opposing counsel actually opposed this and the court did not act on the motion preferring to wait until the issue was moot. Both appeared to take my motion as a criticism.

I disagree though that most bar prosecutors are careful and conservative about filing charges. In none of the cases I am currently involved in did the bar counsel consider probable cause before bringing charges and even when confronted with an absence of probable cause, they chose to ignore the issue. Bar prosecutions are often highly political and bar prosecutors invariably take orders from above. To go against orders is not the path to a judicial appointment. This is one of the reasons I believe that the process must not be conducted in private.

Anyway, the only point I was really trying to make was that without some sort of adjudication, I don't see there being a purpose in posting these cases. A bar prosecutor can say anything in a complaint. It is only once that some sort of adjudication has taken place that we have a determination of the issues which can serve as precedent for the future. At least that's my view. That's why I said that "I just don't see the point". I wasn't criticising that I thought this unfair to the accused. Quite the opposite in fact.


Posted by: FixedWing | May 28, 2009 2:41:55 PM

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