Wednesday, January 16, 2008

Probation Failure

I wonder if there has been any attempt to study the extent to which probation in disciplinary cases either does or does not turn out well. The Delaware Supreme Court decided a disciplinary matter involving an attorney placed on probation in 2001 for violations of Delaware Rules 1.2(a), 1.4(a), 1.5(f), 3.2 and 8.1(b). The court here concludes that the attorney had "knowingly failed to comply with his obligations under the terms of the 2001 probation and that he knowingly made a false statement of material fact in the course of the ODC investigation of his mishandled client funds." The case involved, among other things, fresh misconduct that "resulted in a substantial loss to the client." The court imposed a three year suspension effective January 25, 2008.

The report of the Board on Professional Responsibility is appended to the decision. The client was a bank. The attorney failed to object to a debtor's discharge in bankruptcy. The bank obtained a $1.15 million judgment against the attorney for malpractice. The lawyer also had engaged in escrow account violations that resulted from "poor bookkeeping practices", failed to fulfill the mental health evaluation requirements of the probation, filed false certifications and failed to cooperate with the investigation.

Did the client know of the probation? I did not see a reference to this in the opinion. I do believe that any lawyer on probation for ethics violations should be required to so advise all clients. Why did it take so long to revoke the probation when it appears that the attorney was non-compliant from the outset? The answer is not clear from the opinion. (Mike Frisch)

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