Sunday, July 11, 2010

A Problematic Condition Of Reinstatement

A justice of the Massachusetts Supreme Judicial Court rejected and remanded a recommendation for reinstatement of an attorney indefinitely suspended in 2003. The Board of Bar Overseers had proposed reinstatement with certain conditions.

Justice Gants concluded that the proposed condition that the attorney not handle trust funds suggested that he could not be trusted as a lawyer:

I recognize that reinstatement on conditions is often appropriate and consistent with the standard for reinstatement. Public confidence is sometimes best served when a disbarred or suspended attorney who is reinstated is required, as a condition of reinstatement, to demonstrate his continued sobriety, his continuing legal education, or his adherence to accounting principles to protect client trust funds. I do not see, however, how the Board's condition that [the suspended attorney]refrain from handling client funds for five years is consistent with the Board's implicit finding, by its recommendation of reinstatement, that [he] is morally fit to practice law, that he is worthy of public confidence, and that he will be perceived by the public as morally fit. The condition suggests that he is fit to practice law as long as he does not handle client funds, which suggests that he cannot be trusted with those funds. This condition is significantly different from a condition requiring a reinstated attorney to conduct independent audits of client trust fund accounts. Such a condition applies the Russian proverb of "trust, but verify;" the prohibition against handling any client funds suggests that the reinstated attorney is unworthy of trust, even with verification. I do not believe the public will have (or should have) confidence in an attorney without also having confidence that the attorney will safeguard any client funds he may receive.

Consequently, I do not accept the Board's recommendation that [the attorney] is worthy of reinstatement as an attorney provided he not be allowed for five years to handle client funds. The issue before me, then, is whether [he] is worthy of reinstatement to the bar without this condition. There is nothing in the record or any indication from the hearing before me that the Board considered whether it would recommend reinstatement if [he] were permitted to handle client funds. Because I respect the knowledge and experience of the Board, and give due deference to its decisions, I do not wish to decide the question of reinstatement without first learning whether the Board recommends reinstatement if [he] is permitted to handle client funds. (perhaps with other conditions). 1, therefore, remand this matter to the Board with direction that it provide me this guidance no later than July 30, 2010.

(Mike Frisch)


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