The panel I was fortunate enough to participate in at the meeting of the Association of Professional Responsibility Lawyers in Vancover earlier this month has received a very good write up appearing in a Bloomberg Law publication. You can go read it here. We talked about a number of things other than the looming GDPR deadline, but that is what is the focus of the article. (I do promise to write more about GDPR issues before that May 2018 deadline rolls around, but not today.)
One of the very good panel presentations I had the chance to observe at the APRL mid-year meeting involved representing lawyers in disbarment cases and how difficult it can be to manage your client when you know what’s coming – they are going to be disbarred – but they do not yet realize that’s the future (or they are still struggling mightily to convince themselves it will play out differently.) There are certainly lawyers who deserve to be disbarred, but even those lawyers, if they’ve hired a lawyer for their matter, deserve the best advice and guidance their own lawyer can provide them about their situation. It was a very good panel discussion and offered some good insight about the kind of skill sets lawyers who handle such matters need to possess.
Last week was a pretty big week in Tennessee for removing lawyers from the rolls as the Tennessee Supreme Court issued two opinions disbarring two lawyers in largely different scenarios. The two prominent things they have in common are: (1) as with lots of disbarment scenarios there were conversions of client funds from trust in the mix of problematic conduct; and (2) they both involved what should have been viewed as quite obviously doomed arguments to try to have an order of disbarment be made retroactive to a much earlier date.
One of the things that lawyers representing lawyers ought to recognize – and that was at least something of an implicit theme in parts of the panel discussion – is that, sometimes, the best representation you can provide involves helping your client get disbarred as quickly as possible. In jurisdicitons where disbarment is permanent, that isn’t necessarily true at all. But, in jurisdictions like Tennessee, where a lawyer can apply for reinstatement even after being disbarred, but cannot do so until at least five years has passed, getting to disbarment quickly can be incredibly important. (And, to be clear, I have no insight into the handling of this particular case. The lawyer for the lawyer might have been trying to do everything possible in that regard and might have even made it perfectly clear to the lawyer client that the price of continued appeal was that the disbarment clock was not going to start for many years.)
One of the two opinions – likely quite rightly – describes the conduct of that lawyer as seeming to be “more bungling than nefarious” so this post will focus instead on the case that pretty clearly drips with nefariousness. You can, of course, go read the full opinion here, but here’s a very quick and dirty, bullet point version of the wrongdoing:
- The lawyer convinced someone to give him more than $5 million for a financial venture, promised the funds would be held in escrow and not moved without the person’s permission, and promised payouts to the person from the venture to begin within 30 days.
- The lawyer did not keep the funds in the manner promised, made no payouts, only returned $1 million of the deposited funds, never provided an accounting to the person of what happened to the money, pulled those funds out for a variety of purposes, and then falsified accounting records filed with a court to show the money was still in trust when it wasn’t.
- The lawyer defied a court order requiring transfer of whatever funds were still in the trust account to the Clerk of Court for holding and instead directed the bank to transfer those funds to a bank account of an employee of his law firm.
- At around the same time, the lawyer took a $1,500 retainer from a client. wrote one letter, and then stopped communicating with the client, and didn’t refund the money.
- A year before those situations, the lawyer separately got a payment of $5,000 from a client, did very little work, and then stopped communicating with the client altogether and ignored counsel for the opposing party, and did not refund the client’s money.
- Later, after a temporary suspension had been entered and while on disability inactive status (NB: the only apparent claimed defense for any of the above hinged on a claim to have suffered a head injury in an attack involving being hit on the head with a metal pipe.), the lawyer worked as an assistant for another attorney (NB: back at a time when in TN we did not have the “can’t sweep the floor” rule I wrote about here.) and scammed $10,000 out of one of that attorney’s clients based on false statements that the attorney wanted the payments.
I mean, if you have a decent amount of experience with the disciplinary system, you know the end of this story once you’ve gotten up to speed with the facts: That’s the tale of a lawyer who will be disbarred.
It’s also the tale of a lawyer who will have a very, very hard time ever being able to be reinstated to the practice of law in the future and whose best hope of reinstatement ever coming to fruition likely turns as much on what they do during the disbarment proceedings as what they do to rehabilitate themselves and become a different person over the following five years.
This is also the story of a lawyer who needed someone to remind him that there are things you can do on hills besides die on them.
If that kind of reminder was given in the form of legal advice, it certainly wasn’t followed. Instead, a really big hill was located.
The primary argument pursued on the appeal of the case to the Tennessee Supreme Court was that the date of disbarment should have been made retroactive back some 6 to 7 years earlier. Setting aside just the pure legal flaws associated with trying to argue that the concept of disbarment (rather than suspension) can be made retroactive to a period of ongoing temporary suspension, the act of pushing this argument in this case required someone to stand in front of the Court and ask it to enter an order of disbarment for the above conduct but agree that the lawyer could immediately turn around and apply for reinstatement.
Hope may spring eternal and all that, but that’s such an obviously untenable position that I would have hoped no lawyer would build an entire appeal around it.
In the end, as indicated above, this is the story of a lawyer that likely has no realistic chance at ever being reinstated, but, by persisting on appeal long after the ghost should have been given up (and while having been sidelined from practice for the last 7+ years), any effort at reinstatement cannot be pursued until 2023.