Wednesday, October 3, 2012

Military Service Mitigates Disciplinary Sanction

A disciplinary case decided today is summarized on the web page of the Ohio Supreme Court:

The law license of [a[ former Cincinnati attorney...has been indefinitely suspended  for  violations of the Rules of Professional Conduct in  his dealings with more than 20 bankruptcy  clients.

In a 7-0 per curiam decision announced today, the Supreme  Court of Ohio adopted findings by its Board of Commissioners on Grievances  & Discipline that [the attorney] accepted fee advances from those clients but  deposited the unearned fees in his office operating account rather than in a  client trust account, and spent the clients’ funds on personal and office  expenses without performing the legal services for which he had been retained.

The court agreed with the board’s findings that [his] actions violated, among others, the state disciplinary rules that prohibit an  attorney from neglecting entrusted client legal matters, collecting an illegal  or clearly excessive fee, failing to properly supervise a nonlawyer staff  member, failing to properly segregate client funds in his possession from his  own funds, engaging in dishonesty, deceit, fraud or misrepresentation and  engaging in conduct prejudicial to the administration of justice.

In imposing an indefinite suspension rather than  permanent disbarment as the sanction for this misconduct, the court noted the  mitigating factors that [the attorney] had served in the U.S. Air Force for 20 years,  expressed sincere remorse and  accepted  full responsibility for his actions, cooperated with disciplinary authorities,  and was making ongoing attempts to make restitution to his clients by paying  another attorney to assist those whose cases remain unresolved. As a condition  of any future reinstatement of his license, the court ordered [he] to make aggregate  payments of $2,000 per month to his former clients until he has made full  restitution for their fee advances, complete 12 hours of continuing legal  education in law office and trust account management, and serve one year of  monitored probation upon his reinstatement to the practice of law in Ohio.

The opinion is linked here. (Mike Frisch)

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I don't understand this. The lawyer stole money from the clients in multiple instances, admitted to it, apologized profusely and he doesn't get disbarred (which the court says is the proper sanction for misappropriation) because he is a veteran? What does military service have anything to do with anything? With all due respect to the members of the military all of whom should be admired for their courage, why should military service operate as a mitigating factor and not other kinds of service? What if a lawyer had been a nurse for 20 years before going to law school, or a high school teacher or a firefighter? How do we make the distinction? The lawyer should have been disbarred.

Posted by: Prof. Alberto Bernabe | Oct 3, 2012 6:40:40 AM

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