Monday, December 14, 2009

Stipulation Voluntary, Discipline Recommended

A Louisiana hearing committee has recommended a one-year suspension with all but 30 days deferred in a matter involving three client complaints. The misconduct involved failure to escrow advance fees and return unearned fees after discharge. The attorney, represented by counsel, entered into a stipulation and was the sole witness at the bar hearing. When his testimony appeared to be "at odds factually with the Joint Stipulation" the committee questioned whether the attorney "had knowingly and intentionally entered into what was essentially an admission of both facts and guilt, thereby relieving the ODC from its burden of proving the formal charges by clear and convincing evidence." The committee then satisfied itself that the "plea" was entered into knowingly and voluntarily.

A lawyer member concurred with some harsh language:

Given the stipulations, the Committee had no choice but to find the Rules were violated as alleged and to recommend an appropriate sanction. I concur in order to point out that the Respondent might have benefitted from more capable counsel on the one hand and a less vindictive ODC on the other. I interpret the court's admonition on "overcharging" [in a 2003 case] as a general reminder to ODC to perform its function in a manner consistent with the purposes of lawyer disciplinary enforcement, rather than as an exercise of unrestrained prosecutorial power.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/12/stipulation-voluntary-discipline-recommended.html

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