Lamson, Dugan and Murray, LLP, Attorneys at Law

You did what?! Five Lessons for What to Do – and Not Do – As an Attorney

Posted in Ethics, Litigation Tips

When you practices in the area of legal malpractice defense, you get to see all of the creative ways attorneys get themselves in trouble, or find themselves on the receiving end of a malpractice suit or disciplinary proceedings. Most recently, I came across the story of an Ohio attorney who was indefinitely suspended by the Ohio Supreme Court after being convicted of unauthorized use of his client’s property (a fourth degree felony).

The 37 year-old attorney’s foray into feloniousness began in August 2010, when he met a woman at the county jail who had been arrested after marijuana was found growing in her basement.  The woman told the attorney she did not currently have the money to pay him to represent her, but was willing to sell a piece of land in order to pay his legal bills.  The attorney advised her to transfer the land to him. The client did so, believing the attorney would sell the land, take out his legal fees, and pay her the difference.  Instead, the attorney sold the land (netting $127,767 from the sale), failed to disclose the sale to his client, and kept all of the proceeds. He did so even though he had provided only $9,000 in legal services.  When she attempted to contact the attorney about the sale, he did not return her calls and canceled appointments she had made with his staff. He eventually told her she was not entitled to any portion of the sale proceeds because he had agreed to accept the land as a flat fee for his representation.

Though the client eventually received her portion of the sales proceeds (six years later), her recovery did not stop the Ohio Supreme Court from disciplining him for his numerous violations of the rules of professional conduct, including the rule governing transactions with clients, keeping one’s client reasonably informed of the status of their matter, and charging an excessive fee. Surprisingly, instead of disbarring the attorney, the Ohio Supreme Court indefinitely suspended him, but ordered that he could not seek reinstatement until he successfully completed or was released from the five year “community control” sanction imposed as part of his criminal sentence.

5 Lessons for Practicing Attorneys

The Ohio attorney’s situation teaches us some important lessons. Below are a few, as well as a few other key principles to guide you.

  1. Never steal your client’s money. Ever. Just don’t do it, no matter how dire your financial circumstances. Even an insignificant amount will get you disbarred.  And for the record, ‘borrowing’ is the same as stealing in the eyes of most bar associations. State ex rel. Nebraska State Bar Ass’n v. Ledwith, 197 Neb. 572, 575, 250 N.W.2d 230, 232 (1977)(“We have consistently held that a conversion by a lawyer of trust funds in his possession requires his disbarment.”); State ex rel. Nebraska State Bar Ass’n v. Becker, 226 Neb. 369, 369, 411 N.W.2d 361, 361 (1987) (disbarred for failing to pay $383 in client’s medical bills and for making intentionally false and misleading statements). 
  2. Think long and hard before entering into a business transaction with a client. Even if you think the transaction is a good idea, re-think it.  And if you still think it’s a good idea, make sure you comply with Neb. Ct. R. Prof. Cond. § 3-501.8.
  3. Do not overcharge your clients for legal services; and under no circumstances should you agree to accept cocaine as payment for legal services. You will be disbarred. State ex rel. Nebraska State Bar Ass’n v. Payne, 226 Neb. 727, 728, 414 N.W.2d 283, 284 (1987) (reciprocal disbarment where the attorney had been disbarred by the State of Indiana for possession and use of cocaine, purchasing and possessing narcotics, failure to appear for client at hearing and accepting cocaine as payment for legal services).
  4. Do not ignore your client. You will probably find yourself on the receiving end of a bar complaint. Also, if you make a mistake, do not falsify documents to try and cover your tracks.  You are inviting disbarment. State ex rel. Counsel for Discipline v. Thew, 281 Neb. 171 (2011) (judgment of disbarment for multiple ethical violations, including failure to communicate with client and falsifying documents); State ex rel. Counsel for Discipline v. Thebarge, 289 Neb. 356 (2014) (same).
  5. If Counsel for Discipline comes knocking, answer the door. Ignoring disciplinary proceedings will not make them go away. It will only increase the severity of any sanctions.   Thebarge, supra; State ex rel. Nebraska State Bar Ass’n v. Gast, 298 Neb. 203 (2017); State ex rel. Nebraska State Bar Ass’n v. Gerdes, 232 Neb. 845 (1989)(attorney who had been suspended failed to comply with notice requiring him to notify his clients and opposing counsel that he was suspended from the practice of law, and then failed to respond to an order to show cause why he should not be held in contempt of court and disbarred from the practice of law for failing to give the notification, was disbarred).

You can read the Ohio Supreme Court’s opinion at http://www.springfieldnewssun.com/news/urbana-lawyer-suspended-ohio-supreme-court-for-legal-malpractice/VD7Ibh76zNvQwL5V9ZSDXL/.

 

 

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