Cautionary tales, ethical woe: don’t let these happen to you

March 2, 2017

By Karen Rubin

There should be a word that’s the opposite of “schadenfreude” — you know, that evocative German term that means “secret pleasure at another’s misfortune.”  Maybe there is such a word, but the one I’m searching for would convey the sense of “Please, let me not fall into the same error” as some other person did, because under the right (or wrong) circumstances we can all make ethical mistakes.  Here are three cautionary tales. You may read them and wonder how the lawyers involved came to such grief — or you may just be thankful that it wasn’t you, or that the demons these lawyers struggled with aren’t yours.

If you’re carrying meth, don’t forget your briefcase.

A Colorado lawyer left his briefcase in a courtroom overnight.  The judge’s law clerk found it and identified the lawyer by looking at the documents in the briefcase.  Unfortunately, as the disciplinary opinion describes, “a vial of white power and a syringe were also in the briefcase; a field test by courthouse deputies identified the power as methamphetamine.”  The lawyer retrieved the briefcase later and identified it as his.

A month later, police responded to a domestic violence call at the lawyer’s home.  His spouse told police that after the spouse found meth in the home and confronted the lawyer, the lawyer assaulted the spouse.

The lawyer also neglected clients in six cases, including leaving a client at trial without counsel, and failed to refund at least $7,000 in unearned fees, constituting conversion of client funds.

The court ordered disbarment for among other things, violating the state’s version of Model Rule 8.4(b), which makes some types of criminal conduct into ethical violations.  The court said that it could not consider any mitigating factors, despite the circumstantial evidence of the lawyer’s difficulties, because the lawyer failed to participate in the disciplinary case.

If you’re driving, wear a seatbelt. 

A California deputy district attorney and her co-worker got pulled over and received citations for the D.A.’s failure to wear a seatbelt.  The D.A. called a family friend, a sergeant in the police department’s traffic division, who agreed to dismiss the citations without talking to the traffic officer.  The D.A. then told her co-worker to destroy co-worker’s own citation, but co-worker refused.

The D.A. was tried and found guilty of conspiracy to obstruct justice, and two counts of altering a traffic citation — all misdemeanors.  The appeals court affirmed the conviction.  And in an order that took effect in November 2016, the D.A. was suspended for 60 day, ordered to take the Multistate Professional Responsibility Examination, and placed on two year’s probation.  In aggravation, the court found that the D.A.’s conduct damaged the integrity and credibility of the criminal justice system and the legal profession.

If you work at a firm, hand over the client fees.

A former partner in a Utah law firm worked on two client matters and directed that firm personnel write off some or all of the fees.  The client in each matter did construction work at the partner’s home:  one built a shed worth more than $15,000 and had all his legal fees written off and his retainer refunded; one built a railing for the partner, received $3,500 in cash from the lawyer for the work, and had more than $7,000 in legal fees written off, with the firm receiving just $700.

Each client testified that he had a deal with the lawyer to provide construction work in exchange for the lawyer’s legal services.

The district court concluded that the lawyer had violated the state’s version of Model Rule 8.4(c), barring dishonesty, fraud, deceit and misrepresentation.

As a sanction, bar counsel argued for disbarment, which is the presumptive sanction for misappropriating funds.  The lawyer argued that misappropriating funds from his law firm didn’t rate the same sanction as stealing from clients, and on its review, the state supreme court agreed, in an opinion suspending the lawyer for 150 days.

The court wrote that “that not all misappropriation is created equal. Misappropriation of firm funds does not ‘undermine the foundations of the profession and the public confidence’ in the same way that misusing client funds does,” and does not merit the same presumptive sanction.

Be careful out there.

Takeaways?  (1) If your friend, associate or law partner is grappling with addiction or any other brain disease or mental health issue, reach out to your state’s lawyer assistance program.  It just might save their life, in addition to their license.  A list of every state’s program is here.  (2) Keep your moral compass in front of you at all times.  And, oh yes:  (3) Buckle up when you’re behind the wheel.

Content courtesy of The Law for Lawyers Today: Ethics, Professional Responsibility and More blog. Ohio State Bar Association member Karen Rubin is an attorney for Thompson Hine.


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