Monday, May 16, 2011
Steve Gillers' post at Legal Ethics Forum on the disconnect between violations and sanctions is borne out in a recent decision of the New Jersey Supreme Court. Note the court's order at the conclusion of the report of the Disciplinary Review Board rejects the proposed sanction and directs the attorney to show cause why disbarment or other discipline should not be imposed.
The attorney had a record of prior discipline and the DRB comments on sanction:
Respondent's ethics record demonstrates that he has not learned from prior similar mistakes. Two of his three prior discipline matters included failing to return client files upon termination of representation. apparently, respondent still insists that he can hold client files hostage after the representation is concluded. Either he has not learned from prior similar mistakes or he refuses to accept the mandates of RPC 1.16(d).
One other significant factor is troubling to us. Respondent's noncooperation with ethics authorities in this instance was egregious. In the investigation stage, he found unjustifiable reasons not to turn over [the client's] files to the investigator, including a misrepresentation that the file was voluminous. Thereafter he failed to attend a mandatory [District Ethics Committee] hearing. Combined, these factors constitute a flagrant affront to the disciplinary system.
Drum roll and the sanction:
We, therefore, determine that nothing short of a public censure is justified in this case.
Glad the court isn't buying. (Mike Frisch)