Part Four: The Punishment Fits the Crime?Some of the punishments doled out in 2010 seem a bit harsh.   As an experienced legal malpractice lawyer, in this installment we examine how some of the 2010 Massachusetts Board of Bar Overseers punishments fit in with the events leading up suspensions.

For example, one attorney hired a law school graduate to do employment law work. The recent grad was an expert in employment discrimination law, but he hadn’t yet passed the bar. The attorney was probably just trying to help a friend earn a living while he waited for admission to the bar. Another way of looking at it is that the attorney hired someone to practice law without a license. For this favor, he earned himself a term suspension. Be careful how you help your friends.

Under The Table is Illegal

Another lawyer hired a secretary. At the secretary’s request, he paid her “under the table” so she wouldn’t have to pay tax on her wages. A simple favor, but illegal. This lawyer also received a suspension. As they say, no good deed goes unpunished.
Then again, some penalties seem exceptionally mild. For instance, a lawyer who wrote personal checks from a client’s IOLTA account for personal expenses received only a public reprimand. The same goes for the lawyer who tried to defraud his own firm out of legal fees by forging court documents. As bad as this behavior seems, he too only received a public reprimand.

A public reprimand was also the punishment for a lawyer who was convicted of “minor” assault and battery on his wife.

BBO and Reciprocity

And some penalties are just plain inconsistent, state to state. Though reciprocity might seem at times to be automatic, that isn’t always so. The rule is: “The court may impose the identical discipline unless (a) imposition of the same discipline would result in grave injustice; (b) the misconduct established does not justify the same discipline in this Commonwealth; or (c) the misconduct established is not adequately sanctioned by the same discipline in this Commonwealth.” Massachusetts Supreme Judicial Court, Rule 4:01 § 16.

Non-reciprocity happened twice in 2010. In one case, a lawyer was disbarred in Rhode Island for stealing funds from client trust accounts, despite making restitution, but was only suspended indefinitely in Massachusetts. Another was convicted of wire fraud in real estate deals and was disbarred in New Hampshire – but only given an indefinite suspension in Massachusetts.

Taking Client’s Money Even When They Wont

The punishment in this next case may not be excessive, but it’s easy to understand the erring lawyer’s frustration. Imagine that you’ve won a $250k settlement for your client. You hold the money in an IOLTA account, as is appropriate. Then you try to get your client to take the money, but your client won’t cash the check. You keep trying. And trying. And trying. For six years. You then give up and move the money from the IOLTA into your business account. But still you don’t spend it, until finally, after eight years have passed and your client won’t take the money, you do. A Highly Experienced personal injury litigator did just that. As a result, he was hit with an indefinite suspension – the punishment just below disbarment. He won’t be able to seek reinstatement for four years and nine months. We’ve mentioned this before, but it bears repeating: Your client’s money is not yours.  No exceptions.