A fundamental precept for lawyers ought to be that, when it comes to clients, the only things that are worse than neglecting them are lying to them and stealing from them. For a shorthand version of that, if you find yourself failing to communicate with a client for 57 days (you know, the amount of time I’ve gone between posts), then you might find yourself with an unhappy client.
But, usually, it is going to take more neglect than that to find yourself getting disciplined. Outright abandonment of your client’s matter though usually always will guarantee coming out on the wrong side of a disciplinary complaint.
Two recent examples of bad (but deserved) disciplinary outcomes involving neglect of clients can be found in Georgia and New Jersey.
About a week before Xmas, a New Jersey lawyer was reprimanded by the New Jersey Supreme Court for neglect of a client’s matter in connection with the potential for trying to be a claimant in litigation against Bristol Myers Squibb over personal injuries from environmental contamination. It is not entirely clear, but it appears that this client, who he ultimately never helped pursue a claim, may well have helped lead the lawyer to a multitude of other claimants.
The lawyer ultimately actually stipulated to the discipline imposed against him, which included essentially taking any of several steps that might have been taken to preserve the client’s potential claims. You can read the full background of what the lawyer agreed was done improperly here. This was the first discipline this lawyer received in their 19-year career and, it appears, they only ever were paid a $35 consultation fee by the client. Most salient to my point above though, one of the things that all involved agreed in terms of grounds for discipline was that the lawyer violated RPC 1.4 by allowing his communication with his client to be dormant for months at a time.
On Xmas Eve eve, a Georgia immigration lawyer was disbarred for neglect (if not outright abandonment) of his client’s cases in at least six instances. Earlier in the disciplinary process, the ruling against him involved only a recommended suspension between 6 and 12 months.
Interestingly, the lawyer, for the most part, only ever acknowledged wrongdoing in the nature of not supervising the work of other attorneys at the firm he had founded. But presenting things that way does not sound nearly as palatable when the record indicated that he had roughly 10,000 open cases. Of the 6 immigration matters that made up the charges against him, he was a counsel of record with the immigration tribunal on 5.
The narrative in each of those 6 cases was largely the same. Spans of four to six years or so passed between being retained (and being paid a few thousand dollars on the front end), and the matters still being pending with not much if anything accomplished on behalf of the clients. Other common themes were: (1) the Georgia attorney never speaking with, or meeting with these clients, at all; (2) filing deadlines being missed entirely whether on appeal or otherwise; and (3) where deadlines were not missed it was often because things were filed without permission from the clients. Along the way, during the years those cases were pending, the clients also were not receiving much, if any, communication from any of the other lawyers at the now-disbarred lawyer’s firm.
This pattern of conduct was adjudged to violate a handful of rules including RPCs 1.1, 1.2, 1.3, 1.4, 1.16, and 5.1. At the end of the day though, it is hard to conclude that the disbarment decision was not heavily influenced by the kinds of arguments the lawyer made in the disciplinary proceedings given his status as one of 2 owners of the law firm and given that the position of his adversary, the bar, was that the very business model of the lawyer’s firm was “predicated on knowing neglect,” a growth in the number of cases that was guaranteed to make handling the cases brought in impossible.
The attorney attempted to argue that he was merely the “notice attorney” on these cases and, therefore, did not have full responsibility for the handling of the files. At some point in the proceedings, while still arguing that he was little more than the “face” of the firm for its marketing purposes, he pivoted to at least admitting to having violated his obligations under RPC 5.1 with respect to making sure that his firm had appropriate policies and procedures in place to assure compliance with the rules as well as any duty he had to supervise the handling of cases by others. He also alleged that he was the victim of the “weaponization” of In re Lozano because most of the complaints filed against him were initiated by successor counsel for the clients. While many immigration lawyers do unfairly find themselves subject to disciplinary complaints because of the impact of In re Lozano, this particular Georgia lawyer does not appear to be one of those.
While the Court took umbrage with many of the arguments the lawyer made that attempted to undercut the importance of what was occurring, it did go to the trouble of making a point that, as someone who defends lawyers in disciplinary proceedings, I appreciate being explicitly acknowledged:
[W]e caution Special Masters and the State Disciplinary Review Board
against overreading an attorney’s refusal to admit guilt from the
outset. Attorneys in disciplinary proceedings have the right, like all
litigants, to advance good-faith, colorable arguments supporting
their position…. So refusing to admit guilt from the outset generally means the mitigating effect of showing remorse—one factor among many—is absent, not that the aggravating effect of refusing to “acknowledge [the] wrongful nature of [one’s] conduct” is present.