Monday, September 12, 2011

Ignorance No Excuse

A Louisiana Hearing Committee has recommended a fully-deferred three-year suspension of an attorney who systematically violated ethical obligations relating to the administration of her trust account. The committee found that the attorney's supposed ignorance of the principles of handling other people's money was no excuse:

There is, even absent the stipulation and the expert testimony, simply no question that Respondent is guilty of not only commingling but also systematic and routine commingling of funds between her trust account and her operating account. Respondent maintains that this was not as a result of any improper intent but simply a reflection of the fact that she did not know ( either as a result of lack of mentoring or a deficiency in her legal education) that there was a difference between funds which should be placed into her trust account and those funds which were appropriately placed in her operating account. It is argued (by Respondent) that the evidence of repeated transfers back and forth, the failure to account, and the overall lack of documentation is evidence not of intent but rather of a total lack of understanding of which account was to be used for what purpose and as such Respondent’s actions are at worst negligent.

The Committee has considered the evidence presented and simply cannot conclude that Respondent was completely unaware of the difference between what is appropriately deposited into a lawyer’s trust account versus that which is to be deposited into a lawyer’s operating account. In other words, the Committee is not convinced of Respondent’s veracity when she states that she had no idea what her trust account was to be used for. This argument is really unpersuasive for several reasons...

 The committee recommends probation of two years. (Mike Frisch)

September 12, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Failure Of Proof?

As a follow on to my post last Thursday about the lamentable decision of the D.C. Court of Appeals in the disciplinary case involving Claude Allen, I will relinquish my soap box after making one more observation.

The court agrees with its Board on Professional Responsibility that Bar Counsel failed to prove that the attorney's multiple, deliberate thefts involved "dishonesty for personal gain." Thus, no moral turpitude. Thus, no mandatory disbarment.

The court here overlooks one salient fact and its own rules.

The attorney was convicted of misdemeanor theft, which under Maryland law requires proof beyond a reasonable doubt of a willful intent to permanently deprive the owner (here Target) of its property. The conviction is conclusive proof of all elements of the crime for disciplinary purposes. See Rule XI, section 10(e)(linked above).

Bar Counsel was not obligated to prove intent to steal, as the conviction operated as conclusive proof of the attorney's intent. If stealing isn't dishonesty for personal gain, two plus two may well equal five.

A court might hold (counterintuitively, in my view) that some crimes of dishonesty for personal gain are sympathetic enough to avoid a finding of moral turpitude. I see no such circumstances here.

I cannot see how any finder of fact or concluder of law finds no dishonesty for personal gain in a series of carefully devised thefts that result in a criminal conviction.

Of course, one way is to blame Bar Counsel for a "failure of proof." Next time, they will be sure to put a witness inside the attorney's head. (Mike Frisch)

September 12, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Law School Interns and Bar Admission

The Georgia Supreme Court affirmed the denial of an applicant's certification of fitness to practice law.

The applicant had attended John Marshall Law School and had denied any criminal history despite three misdemeanor convictions. When the issue was uncovered by the bar, he sought to amend his law school application.

 While in law school, he served as an unpaid intern for the Atlanta Metro Conflict Defender's Office. He had a disagreement with a senior staff attorney and left court without asking permission. He then sent the attorney e-mails "in which he used veiled and actual profanity." He was terminated from the internship.

The applicant then failed to disclose his family violence battery conviction in his bar application.  He blamed the problem on a computer error. He then explained that he could be trusted with vulnerable clients "[p]robably because I am not going to marry them."

The hearing officer found he was remorseful but that '[his] conduct, as a whole, could not be justified." 

In a second matter, the court also affirmed the denial of a fitness certification of an applicant with "a criminal history [that] includes numerous arrests, felony and misdemeanor convictions, and six DUI convictions, and spans almost thirty years, extending not just from his youth but into his mid-forties. The last illegal actcited in the application occurred only seven years prior to the formal hearing [on his bar application."

He also had not been fully candid with his law school concerning his criminal history and was still amending his law school admission application at the time of the hearing.

The court found that his work as a law school intern for credit was not a pro bono type activity:

...much of his community service was in the form of legal externships for which he received law school credit, and thus, although it was well-established that he performed diligently, these activities were not undertaken purely for philanthropic reasons.

 (Mike Frisch)

September 12, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)