July 20, 2017
By Karen Rubin
Being inexperienced can contribute to getting into disciplinary trouble, but it can also be a mitigating factor in a bar disciplinary case. That’s the message of a recent opinion
of the Oklahoma Supreme Court, which imposed a six-month suspension from state practice as reciprocal discipline on a lawyer who had already been suspended from federal bankruptcy court practice for five years.
Raising the risk?
Something like 37,000 students likely graduated
from law school this year; that’s a lot of newly-minted JD’s coming into the world of practice. And while they might know more about legal ethics when they graduate than they ever will again (as I tell the law students I teach as an adjunct ethics prof), it’s also surely true that simple inexperience can play a role in going astray and getting into disciplinary trouble.
For one thing, with the legal job market being what it is
, many new lawyers will likely be hanging out their own shingles. There are lots of opportunities for a novice to get mentoring, advice, and hand-holding from more-veteran members of the bar.
But failing to take advantage of those resources can mean that an inexperienced solo lawyer is stuck in an echo-chamber, without the corrective that a more-seasoned viewpoint can contribute. And even in a firm, it’s easy to make a mistake if the proper supervision is lacking.
Sooner State of confusion
The lawyer in this disciplinary case was admitted to the Oklahoma bar and started practicing in 2013. About 18 months later, she got her first client — a couple who were attempting to set aside a bankruptcy court order.
Her attempt on the couple’s behalf went badly wrong, and then spiraled out of control: the bankruptcy court found the lawyer’s set-aside motion to be without any legal or factual basis; she missed the deadline to supplement the filing; and then she sued the trustee, the judge, the state courts of two counties and the layers representing the creditors.
The court dismissed that suit with prejudice, and the creditors moved for sanctions against the lawyer in the bankruptcy court, asserting among other things that she had filed frivolous litigation, misrepresented facts, and had threatened the bankruptcy trustee and attorneys with criminal prosecution in bad faith.
Before the sanctions hearing, the lawyer entered into a settlement, accepting a five-year suspension from practice in both Oklahoma bankruptcy courts.
It’s a little-known fact that drawing professional discipline in one jurisdiction where you are admitted to practice (including before federal courts), can bring reciprocal discipline in other jurisdictions where you are admitted. That’s what happened here.
In response to the state bar’s disciplinary charges, the lawyer creatively argued that because her bankruptcy suspension was a result of an agreed settlement and not an “adjudication,” there was no basis for reciprocal state discipline. The Oklahoma supreme court swept that argument aside, and held that her conduct violated the Sooner State’s versions of Model Rules 1.1
(competence); Rule 3.4
(unfairness to opposing parties and counsel); and Rule 8.4(d)
(conduct prejudicial to the administration of justice).
But in weighing the appropriate reciprocal discipline, the court significantly took as a mitigating factor that the lawyer “was new to the practice of law and without supervision or training.” Without intending to hold “new legal practitioners to different standards from more seasoned lawyers,” the court nonetheless took account of the fact that the lawyer “was practicing on her own with little prior training or supervision and refused to ask for help.”
Thus, although acknowledging that the lawyer exceeded the bounds of zealous advocacy, and “displayed a lack of competency and insolence in the practice of bankruptcy law,” the court imposed only a six-month suspension from practice.
Don’t let this happen to you
If you’re a newbie, recognize the limits of your knowledge and get help. Don’t count on your inexperience to save you from harsh professional discipline; you don’t want to go there in the first place. If you practice by yourself, take advantage of all the formal and informal mentoring and training resources available via state and local bar associations and law schools.
My hometown Cleveland Metropolitan Bar Association, for instance, has a solo and small firm practice section
. The Ohio Supreme Court has a lawyer-to-lawyer mentoring program
, linking veteran lawyers with new practitioners. Last, here are other mentoring programs, listed by state
.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.
Watch an OSBA CLE OnDemand seminar featuring Karen Rubin discussing Five Hot Ethics Issues for Ohio Lawyers.