Monday, June 17, 2013

What do you think should be the proper sanction for this conduct?

I am curious to see what you think should be the appropriate sanction give the following facts (which are taken from an actual case recently decided in Kentucky).

A client pays an attorney $50 to write a letter.  The lawyer takes the money and tells the client he will get it done and call him back.  The attorney does nothing.  The client tries multiple times to reach the lawyer but the lawyer does not call him back.  The client complains to Bar Counsel.  Bar Counsel calls the lawyer and lawyer says he inadvertently overlooked the matter.  (There is no explanation as to how he inadvertently also failed to call the client back after multiple requests.)  Lawyer promises Bar Counsel that he will do the work and get in touch with client. The lawyer then does nothing, doesn't contact the client and keeps the money.  The client tries to contact the lawyer; the lawyer does not reply.  Bar Counsel calls the lawyer; lawyer does not call back.

Bar Counsel then files a formal complaint and sends it to the lawyer.  The lawyer signs for it when delivered.  Lawyer does not reply to the complaint; does not reply to a second letter reminding him to reply to the complaint.  The complaint was processed and the charges entered.  The attorney was notified, but, again, did not reply or do anything about it.

After all that, a 20 member board found the attorney in violation of at least 4 rules (20 to 0 vote). 

Now, here is the question:  what is the best way to handle this type of conduct?

The Court issued a 30 day suspension.

I understand that, given that the attorney did not participate in the proceeding, we can't determine the reason for his conduct (Is he simply disorganized or is he incompetent?  Is he unfit to practice or just negligent?  Is he disabled in some way?).

I understand that without more information, a stronger sanction may be unfair.  We really can't determine if maybe the attorney should not be allowed to practice...  But what is the alternative?  If nothing is done about this, lawyers could avoid facing severe consequences for their conduct by simply blowing off the process.

If I had been in a position to decide this case I would have imposed a much harsher sanction.  The attorney clearly knew what he was doing was wrong.  He had been told by Bar Counsel.  He committed to correct the initial mistake but decided not to.  He clearly knew a disciplinary process against him was under way.  I would have interpreted his conduct as either so incompetent that it raised doubts as to his ability to practice or as evidence that he simply did not care - did not care about his client, about doing his job, about acting professionally or ethically, and about the process.  Either way, my conclusion would have been that he needed to be punished severely.  And if I were Bar Counsel, I'd check to make sure the attorney is not practicing during his suspension.

No comments:

Post a Comment