September 3, 2009
Too Vague To Sanction?
An interesting (at least to me) bar discipline recommendation from the Illinois Review Board overturns several findings of a hearing board and proposes a one-year suspension for conversion and breach of fiduciary duty, among other things. The circumstances involved the lawyer's actions as an employee of two firms, both of which discharged the lawyer when improper activities were discovered.
The most interesting aspect of the decision is a dissent by a board member. The board member notes that the terms "conversion" and "breach of fiduciary duty" do not appear anywhere in the rules governing attorney conduct. Thus, discipline predicated on such findings violates the accused attorney's due process rights:
I specifically take issue with the first two charges in each of the eleven counts: those for "conversion" and "breach of fiduciary duty" as I believe those charges implicate Constitutional concerns grounded in fair notice. See e.g. United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 97 L.Ed. 200 (1952). ("The vice of vagueness in criminal statutes is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid, may be as much of a trap for the innocent as the ancient laws of Caligula.") I also take issue with the manner in which the Hearing Board treated civil proceedings related to the case, and the majority's tacit approval of that treatment.
The dissenting member would remand for further proceedings:
None of this is to say that Respondent's conduct is somehow beyond all possible bounds of the Rules of Professional Conduct. Although I share many of the sentiments expressed in Chairman Hooks's dissent to the Hearing Board's Report and Recommendation, the Rules do contemplate discipline for misconduct involving dishonesty, fraud, deceit or misrepresentation - whether it involves a client or an attorney's intra-firm dealings. I believe it incumbent on both the Hearing Board and Review Board that we insist that the Administrator try misconduct of that nature within the confines of the existing (or amended) Rules - rather than on the broader, murkier bases available in tort.
For all of the reasons foregoing, I would dismiss the charges of "conversion" and "breach of fiduciary duty" in each of the eleven counts and remand the case to the Hearing Board for proceedings under the appropriate charges based in the Rules of Professional Conduct
The hearing board report is linked here. (Mike Frisch)
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