Tuesday, January 5, 2010

What do you have to do to get disbarred...?

I have often complained about the inconsistency within and among jurisdictions when it comes to sanctions and about the ineffectiveness of imposing light sanctions for serious misconduct. Go here and scroll down for a number of posts on this.)

Today I have two more stories to add to this topic.

The first one involves a judge in Tennessee who apparently routinely ordered visitors in his courtroom arrested and forced to submit to drug testing when the judge just felt “a hunch.” The judge believes that he can simply arrest on every hunch he has as what he calls the “routine policy of the court.” The Supreme Court’s Judiciary Court censored his conduct and ordered Moore to “never violate a person’s constitutional rights.” ... as if that was just a simple mistake or something trivial... Despite his admission of misconduct, the judge will be allowed to continue to rule in cases despite his total lack of respect for basic constitutional principles. (As an aside, however, one of the people whose rights the judge violated has sued him in civil court.) Go here for more on this story.

The second story is even worse. This case involves an attorney who failed to do the work he was hired to do for a client, then gave the client a forged and falsely notarized document and assured the client (also falsely) that it had been recorded. When all the lies were exposed, the attorney admitted his actions to his firm and attributed them to stress, his use of cocaine and drinking. The law firm fixed the problem at a substantial cost to the firm and suspended the attorney. When the attorney did not report his own misconduct to the authorities, the firm reported him. He responded to the bar complaint by lying about pretty much everything. He lied about his ongoing cocaine abuse and treatment. He had dropped out of a treatment program by falsely claiming that his father had died. He postponed a meeting with Bar Counsel by falsely claiming that his fictitious nephew had been killed in a traffic accident.

So, in light of the undisputed evidence of neglect, forgery, lies to a client, severe harm to the law firm, lies to the disciplinary authorities and lies to the treatment facility, the board found that the attorney "had trouble telling the truth." Wow! Now that's an understatement. Antonio could have figured that out! (For those of you who are not my students: Antonio is my 5 year old son).

The board also found that the attorney's substance abuse did not cause the misconduct and that the attorney had failed to establish any significant support for mitigation

Yet, the Board rejected a recommendation for disbarment in favor of a three year suspension.

I agree with Mike Frisch, of the Legal Profession Blog, when he says "I understand that the proposed sanction is not all that different from a disbarment. However, disbarment is a meaningful sanction that identifies the type of behavior that a self-regulating profession must condemn. If an informed public infers that a big-firm lawyer got special treatment, so much the worse. This is a disbarment case." Go here for more on this story. Go here for a copy of the decision. (Thanks to the ABA Journal.com for this link.)

Thanks to Jonathan Turley for the information on the first case and to the Legal Profession Blog for the information on the second one.

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