Legal ethics

It’s called “reciprocal” discipline but …

Sometimes, not always of course, but sometimes representing a client in a disciplinary matter can become much more complicated if they hold licenses in multiple states. The problems of potential reciprocal discipline being imposed in those other states can sometimes make it difficult for a lawyer to be willing to agree to even minor discipline in one state.

Now you all would be forgiven if you just assumed that what happens is that if another state undertakes to impose reciprocal discipline as a result of discipline imposed somewhere else that the state just imposes the same discipline. For example, if you get a public censure for a violation in Alabama and you are also licensed in Georgia, then you will also eventually get a public censure in Georgia. After all, while the definition of the word “reciprocal” is just doing something in return, the word “reciprocate” connotes the inclusion of a level of equivalence in what is being exchanged. And, of course, many lawyers are familiar with the term “reciprocity” when speaking of how jurisdictions treat admission to their bars without an examination and think of immediately as being the idea that one state will only allow that for applicants from other states that allow the concept.

But, while what frequently happens is that a lawyer gets equivalent additional discipline in other jurisdictions of licensure, that is not at all the only available result.

Three very recent examples involving six different jurisdictions help drive that point home a bit. One of the examples has a connection to Tennessee (though I have no connection to the matter of course) and the other two examples hit my radar screen purely as a result of Mike Frisch’s tireless work at The Legal Profession blog.

The example with the Tennessee connection comes closest to what one might expect as a traditional result, but even it has a bit of a twist.

The March 10, 2023 reciprocal discipline order out of Minnesota for a lawyer who was suspended in Tennessee for three years (with four months of active suspension and 32 months of probation) is here. The lawyer engaged in a lot of misconduct involving forgery of signatures and otherwise playing fast and loose with signatures in a number of bankruptcy matters.

The Minnesota order imposes the same four months of active suspension plus 32 months of probation on the lawyer as Tennessee did. But wait. The 32 months of probation will only start running in the near future, whereas the original Tennessee discipline was imposed back in August 2021. So, as a result, while the lawyer could be both up and running and completely free from any probation requirements in Tennessee as of August 2024, they will still be subject to probation throughout just about all of 2025 in Minnesota.

Another recent circumstance involving DC proceedings prompted by Nevada discipline is extremely bad news for the lawyer involved. In Nevada, the lawyer was suspended for six months and one day for trust account violations that included not just commingling violations but misappropriation of client funds. This order from DC has now disbarred the lawyer in question because under DC precedent disbarment is presumed to be the appropriate discipline for intentional misappropriation and lesser punishment is only available on an “extremely rare” basis.

It is, of course, possible for a lawyer to manage in a reciprocal discipline situation to convince the second jurisdiction to impose a lesser punishment then was imposed in the first jurisdiction. That also happened quite recently as is shown in this New Jersey matter involving only a suspension of six-months against a lawyer who had been suspended in New York for 18 months for the same conduct.

The underlying offense involved the employment of a lawyer who had himself been suspended from the practice of law. The latest New Jersey ruling details at some length the lengths to which the hiring lawyer went to try to employ the suspended attorney in a way he thought would be okay. The various mechanisms, however, did not apparently work and the suspended lawyer ultimately got disbarred in New York for continuing to hold himself out as a lawyer while suspended and the hiring lawyer was hit with an 18-month suspension for assisting the suspended lawyer in the unauthorized practice of law.

Because New York’s standard for discipline (like Tennessee’s) only requires proof by preponderance of the evidence rather than New Jersey’s requirement of clear and convincing evidence, the New Jersey opinion does go through the proof to be certain that there really was the assistance of UPL. Both New York and New Jersey do prohibit lawyers from employing suspended lawyers as paralegals, but New Jersey ultimately determined that different discipline was warranted and only imposed a six-month suspension. It rejected arguments for making that suspension retroactive and made it purely prospective.