Friday, August 28, 2009

Fudge Factor

An attorney who came to the attention of disciplinary counsel as a result of a trust account check overdraft was suspended for 24 months by the Washington Supreme Court. According to the attorney, the first overdraft was an "oversight." The bar accepted this explanation but the problem persisted. The attorney admitted that he had "fudged things" in responding to the bar complaint. The court found more than fudge; rather, he had made false statements to disciplinary counsel.

The court rejected mitigation based on health problems because the medical conditions did not cause the misconduct:

The hearing officer did not expressly find a connection between [his] personal
problems and any of his misconduct.  Rather, she found that [he] had a major illness
and surgery in 2003, that subsequent to the surgery [his] mental and physical
condition and financial situation deteriorated, and that the deterioration of [his]
financial situation resulted in his personal bank accounts being closed.  These findings
arguably demonstrate a connection between [his] personal problems and his violation
of former RPC 1.14(a), as charged in count 3, by depositing lawyer funds into his
pooled IOLTA trust account.   

The hearing officer's findings do not, however, demonstrate a connection between [his] problems and any of the other misconduct charged, including his violation of ELC 5.3(e)(1) and former RPC 8.4(c), as charged in count 6.  Thus, although the personal or emotional problems mitigator was properly found, its effect, if any, was inconsequential in light of the unchallenged aggravating
factors.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/08/an-attorney-who-came-to-the-attention-of-disciplinary-counsel-as-a-result-of-a-trust-account-check-overdraft-was-suspended-fo.html

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