Interesting Recent Discipline Cases

Voluntary Petition for Review Panel Reprimand Successful

Where is my GPS?

The Supreme Court unanimously held that a Review Panel Reprimand was appropriate discipline despite several findings of violations. 

The attorney in question defended the client in a lawsuit and filed a third-party complaint.  When a summary judgment was filed, the attorney misaddressed a letter to the client about the motion.  When the client did not receive the letters and thus did not contact the attorney, the attorney did not respond to the motion.  A judgment was entered against the client, which the attorney did not tell the client about.  The attorney then “effectively withdrew” from the case, but did not tell the client or withdraw formally with the court.  The attorney then did not provide the file to the replacement attorney in a timely manner.  The attorney was found in violation of Rule 1.3 (diligence), 1.4 (communication) and 1.16(c) and (d) (declining and terminating representation). 

As with any bar violation, the key evidence is the mitigating factors.  The attorney argued that he had only one prior Investigative Panel  Reprimand, the client did not have a defense to the claim (though that did not excuse the conduct), and the client has a third-party claim that remains viable.  The attorney has also provided his E&O carrier information to his client’s new counsel, is remorseful and cooperated in the disciplinary matter.

The attorney submitted a voluntary discipline for Review Panel Reprimand.  Although the violation of Rule 1.3 had a maximum penalty of disbarment, the Court accepted the voluntary petition.  If there is a lesson, it is that the attorney has a better chance of avoiding suspension or disbarment by cooperating with the disciplinary process and making the claim a civil matter as much as possible.

Lawyer indefinitely suspended but not disbarred

An attorney that failed to properly handle a client’s DUI charges, including failing to appear in court and communicate with client, leads to an indefinite suspension.  The attorney could not be served at the address listed with the Bar and thus defaulted after service by publication.  The panel apparently recognized as mitigation unspecified personal and emotional problems, but the opinion is unclear as to how the mitigation was raised since the attorney was in default.  The attorney also had a prior admonition.

The attorney received an indefinite suspension rather than being disbarred. As conditions to reinstatement, the attorney must show that she has paid the client $6,450 as reimbursement for attorney’s fees, the amount defaulted on a bond and the case re-docketing fee, and that she has received certification from a board certified psychiatrist that she is mentally competent to practice law, within the meaning of Bar Rule 4-104.  Under these facts, disbarment was very possible.  The indefinite suspension gives this attorney a second chance.

Trust Fund Violation Not Theft – One Year Suspension

In an interesting case, a special master’s recommendation for a one-year suspension was accepted by the Supreme Court.  The facts are too long to summarize here, so see the opinion for details.  The point of interest is that the attorney was found to have violated Rules 1.15(I) and (II), and Rule 1.3 and 1.4. 

Several points were of interest in the case.  Although the attorney failed to make an argument for mitigating factors, the Supreme Court recognized the attorney’s pregnancy as a form of mitigation in failing to communicate with the client during that time.  As aggravation, the attorney acted with a selfish motive and failed to acknowledge the wrongness of the conduct.  The money quote of the opinion:  “While [the attorney] did not show remorse, we agree that her actions were not theft, but poor practice management, particularly the failure to enter into a clear representation agreement and fee schedule.”

The attorney was suspended for one year with conditions:  (1) attend the Bar’s ethics school and (2) attend and implement the Bar’s Law Practice Management Program.

Four Justices Impose Review Panel Reprimand – Three Dissenters Think Lower Investigative Panel Reprimand Appropriate

A young attorney worked on a corporate purchase.  He failed to issue a factually accurate opinion letter.  His only violation was of Rule 1.1 (competence).  The Court found numerous mitigating factors.  The attorney was young and inexperienced at the time, it was an isolated incident, he was remorseful, he filed a petition for voluntary discipline prior to being charged, he had a good reputation, did pro bono work, serves as a mentor and is active in the community.  The Court noted that he was merely negligent and no harm occurred as a result of his work.

The attorney requested an Investigative Panel Reprimand, but agreed to accept the high discipline of a Review Panel Reprimand.  Despite the overwhelming mitigating factors and proactive conduct of the attorney, four justices held that the attorney should be given a Review Panel reprimand.  Three justices (Benham, Nahmias, and Melton) dissented and argued that the attorney should be given the lesser punishment of  an Investigative Panel Reprimand.  Slit courts on disciplinary matters are fairly uncommon.  It is hard to disagree with the dissenters here.

Numerous Disciplinary Matters Leads to Rejection of Voluntary Discipline

An attorney that had numerous disciplinary matters, including one in which he received leniency from the Supreme Court while other matters were pending,  had a voluntary petition for review panel reprimand rejected by the Supreme Court.  The Supreme Court was not at all happy about its prior leniency, apparently without knowledge of the other pending meritorious grievances.  The Supreme Court was also confused about a mitigating factor issue.   According to the opinion, the Special Master had considered a prior reprimand as a mitigating factor rather than an aggravating factor.  Which leads to the next opinion.

Supreme Court Issues 24-month Suspension and Rejects Mitigating Factors

In a case with a long set of facts that include allegations of improper sexual communications with a minor, the special master recommended a six-month suspension.  The opinion reports substantial evidence of rehabilitation.  Of interest in the opinion was the Court’s comments on the mitigating factors relied upon by the Special Master.

In mitigation of discipline the special master found no prior disciplinary history, no personal or emotional problems, full and free disclosure and a cooperative attitude towards the disciplinary proceedings, good character and a positive reputation, a delay in the disciplinary proceedings (based on no fault of either party, Levin was not convicted until more than two years after the commission of the crimes and the State Bar could not bring proceedings until he was convicted), the imposition of other penalties or sanctions, remorse, and the voluntary suspension of the practice of law for six months….

The Supreme Court held that the delay in the criminal proceedings could not be considered as mitigating factor as the delay was not caused by the State Bar.  The Court also held that the voluntary suspension of practicing law by the attorney could not be considered in mitigation because he did not cease practicing in anticipation of future punishment.  Rather, he was unable to represent clients and most had heard of what he did and did not want him to represent them any longer.  The Court also held that the imposition of criminal penalties could not be considered a mitigating factor.  After removing these mitigating factors from the equation, the Court held that a 24 month suspension was appropriate.


1 Response to “Interesting Recent Discipline Cases”

  1. March 27, 2012 at 4:24 pm

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