Thursday, January 8, 2015

Question Of The Day

As a follow up to our post yesterday on plea bargaining in attorney discipline matters, I pose the following question.

You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.

The presumptive sanction for such misconduct in your jurisdiction  is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.

 Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred.

Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.

You know (1) that a fully litigated case might take five years  or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct.

That happy event is likely at least two to three years away.

So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.

Do you take the deal if your system gives you the authority and responsibility to do so?

If your system does not permit a consent disposition under these circumstances, is there something wrong with your system?

We may have some present and former disciplinary counsel that occasionally read this blog. I'd be most interested in their reaction by comment or otherwise. (Mike Frisch)

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You say no to the deal, even though it accomplishes the same result faster and at less cost, because politically you can't afford to look "soft" on discipline.

Posted by: David Cameron Carr | Jan 8, 2015 7:51:12 AM

That is a great question and I wish some readers would post answers. I will copy it to my blog and see if I can get readers to come here to contribute.

As for me, I think that I would take the deal because, given the attorney's age and plans to retire, the deal will likely result in permanent disbarment.

I think the worst part of the case is that disbarment is really only a five year suspension. If it was up to me, disbarment would always be permanent.

Posted by: Prof. Alberto Bernabe | Jan 8, 2015 6:55:16 PM

David: your cynicism reminds me of me.

Alberto: excellent questions. I find the hearing board's approach to the mental health mitigation inconsistent in that they discount it on one hand and credit it with the other. As to the big-firm bias issue, I encountered that in D.C. most prominently in a billing fraud case In re Romansky. A big firm, big shot got kid gloved treatment on the facts and the law.
It was a very upsetting experience that made my departure from bar discipline inevitable.

Posted by: Mike Frisch | Jan 9, 2015 11:55:20 AM

Great questions, but don't expect bar staff to comment. Many will fear their responses will be used by lawyers facing disciplinary action in the future. Many will believe it inappropriate to offer comment, given bars function in a quasi-adjudicative manner -- kind of like asking judges how they might rule on things. That said, this is the best blog and many bar staff and volunteers who read it appreciate it VERY much. Well done, please keep it up.

Posted by: Not saying | Jan 9, 2015 1:59:58 PM

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