Wednesday, June 4, 2014

Illinois Review Board issues opinion that suggests minor sanction is in order for misappropriation if there was a good reason to misappropriate

Although there are always exceptions, misappropriation of client's funds will almost always result in disbarment.  This is certainly true in Illinois, where almost every year misappropriation ranks as one of the top types of misconduct that results in disbarment.  And this is a not a bad thing.  If you steal money from your client you should be disbarred. Period; end of story.  That is what I teach my students.  But, like I said, there are always exceptions.  The hard question is what are the reasons for which we should make an exception.

This is why I was surprised to read about this decision of the Illinois Review Board recommending a mere 30-day suspension for a case of misappropriation because the Board apparently thought the misappropriation was done for "sympathetic reasons."

I understand that every case is different and that the Board should consider arguments in favor of mitigation, but it always troubles me when a decision seems to suggest that there are good reasons to steal and bad reasons to steal and that you will not get in serious trouble if you steal for a good reason. Aside from going against the vast majority of the cases on the issue, this type of reasoning sets a bad policy.

In particular, the court considered as a mitigating factor the fact that the client was not aware that the lawyer had misappropriated the funds.  Again, I understand that the Board is essentially saying that the client was not harmed by the misconduct, but what it says can also be interpreted to mean that the better the lawyer is in hiding the misconduct from the client, the lesser the sanctions should be.  This does not make much sense to me.

I think the opinion should be reversed and a stronger sanction should be imposed.