Legal ethics

New York Disbarment Speedrun

Now to get the obvious first question out of the way: “speedrun” is a term that gamers use to refer to tackling a video game in a manner where the goal is to try to just complete the whole thing as quickly as possible rather than worrying about high scores. If you want to do a deeper dive on the topic (which would be like the exact opposite of speedrunning learning the definition), here’s a Wikipedia page.

Usually, getting disbarred is an outcome that does not come quickly for lawyers … some lawyers don’t ever even get disbarred at all before they stop practicing law.

This post is about a New York lawyer, however, who managed to speedrun getting disbarred less than seven years from first getting licensed to practice. (The disciplinary proceedings leading to disbarment were actually filed only a little more than four years after he got licensed.)

Now, you may have seen the ABA Journal article about this lawyer which highlighted an unusual aspect of the total charges that the lawyer faced (about which more) but the core offenses the lawyer committed to result in getting disbarred involve a pretty straightforward charge of commingling/misappropriation of client funds and starting his law practice off in a pretty doomed fashion by getting a $100,000 loan from a client to start his law firm and not complying with the ethical rules as to business transactions with clients. Worse yet, he drafted the loan agreement and the document effecting the terms of the repayment plan, and allegedly repaid the client only $25,000.

The misappropriation offense involved significantly less money than the loan — only $3,500 — but was extremely brazen in as much as the check received by the lawyer was clearly identified as being for the payment of certain expenses specifically obtain trial transcripts for evaluating after being hired to file a notice of appeal, but was pocketed by the lawyer and argued by the lawyer — despite “Court’s Transcripts” being written on the check — to have been just a retainer that the lawyer could use for any purpose.

If these events were all there was to the story, then (1) that might well have been enough to support the disbarment order; (2) it probably wouldn’t have gotten any coverage in ABA Journal; and (3) I certainly wouldn’t be writing about it.

But there was more to the story and so I do feel like I have something actually meaningful to say.

The ABA Journal headline about this disbarment was: “Lawyer is disbarred for mishandling client check, recording trial with concealed-camera eyeglasses.”

The portion of the order of disbarment says this about the lawyer’s offense:

Second, the Referee found that during a matrimonial trial, respondent made an unauthorized recording of the court proceeding by wearing eyeglasses with a concealed camera. Respondent admitted this wrongful act and the Referee sustained this charge, finding that respondent’s actions constituted conduct prejudicial to the administration of justice in violation of rule 8.4(d).

My possibly meaningful thing to say? What does it say about the U.S. court system that a lawyer secretly recording what goes on in litigation proceedings is “prejudicial to the administration of justice?” If court proceedings are conducted consistent with how court proceedings should be conducted, then the existence of a recording of those proceedings shouldn’t negatively impact the administration of justice to any degree.

Now, I have to imagine that there is some sort of court rule in New York that was violated by the recording either because it was a divorce case or because of some broader court rule purporting to limit the ability to record proceedings but, if that’s the case, then the lawyer’s ethical offense should involve violating a court order, so New York’s version of RPC 3.4(c), not an offense under RPC 8.4(d).

I ranted a bit about this back in a post a couple of years ago when everyone was talking about the “I’m not a cat” lawyer incident, but an even more pressing overall question is: why is our profession still putting up with the idea that there should be court rules that prohibit recording the events that take place in public courtrooms?

What transpires in the courtroom is public property.

And even if our profession is willing to put up with it, why is the public willing to put up with it?

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