Wednesday, October 24, 2012

Public Protection Requires Disbarment

The North Dakota Supreme Court has accepted findings of misconduct but rejected a proposed three year suspension in a matter involving misappropriation of entrusted funds.

The court imposed disbarment, rejecting the arguments of the Office of Disciplinary Counsel for a lesser sanction because of the attorney's conduct after the misconduct was uncovered:

Disciplinary counsel argues there must be an incentive for attorneys to admit violations, cooperate in the disciplinary process, and take steps to undo the damage they have caused. We agree. As a result, disciplinary counsel further argues that McDonagh's cooperation and restitution outweighs the seriousness of his violations and the presumptive sanction of disbarment. We disagree. For example, in Disciplinary Bd. v. Mahler, the disciplinary board recommended an attorney be disbarred for a trust account and fee violation. 2012 ND 124, ¶ 1, 819 N.W.2d 489. Mahler deposited a $2,500.00 retainer into his operating account rather than into a trust account, and spent the retainer money before any fees were earned. Id. at ¶ 3. He also charged a higher fee than agreed to, and failed to diligently represent the client. Id. Mahler admitted the underlying facts and consented to discipline. Id. at ¶ 5. We rejected the recommended sanction of disbarment, ruling it was "inconsistent with and disproportionate to discipline imposed in similar circumstances." Id. at ¶ 8.

In this case, the recommendation was a three year suspension for much more serious violations than Mahler's by an attorney who also admitted the violations and cooperated with the investigation. While it is important to promote cooperation and restitution, the protection of the public and the profession is paramount. We must weigh the seriousness of McDonagh's violations and be consistent in the imposition of disciplinary sanctions for the same or similar violations. McDonagh engaged in a very serious pattern of deceit, including forging documents, lying to business associates, and misapplying client funds. In this case, the aggravating factors outweigh the mitigating factors, and disbarment is the appropriate sanction.

As a former disciplinary counsel, I find the issue of providing incentives to cooperate with the bar to be one worthy of further discussion. If an attorney truly self-reports (i.e. reveals misconduct when there is no likelihood of discovery), I think that a court might treat such conduct as a basis to avoid disbarment.  (Mike Frisch)

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