Tuesday, July 22, 2014

Will you vote for this blog?

The voting for the ABA top 100 legal blogs is now open.  If you like this blog, I would appreciate your vote! To vote go to this link and fill our the form.

Monday, July 21, 2014

What do you have to do to get disbarred in Wisconsin?! Court rejects request to disbar attorney who misappropriated money from a client with diminished capacity while serving as guardian

Misappropriation of clients' funds is often considered to be one of the worst types of misconduct and usually results in disbarment.  In fact, it should result in disbarment.  If you steal money from your client, you should be disbarred.  Period; end of story.  That's always been my position and, typically, courts agree with it.  But every now and then there are exceptions.  Recently I wrote about an Illinois Review Board decision that suggested an attorney should not be disbarred for stealing client's money because the client did not know the lawyer had stolen the money and because the attorney had a good reason to steal the money.  As I said in my original post, that's absurd.

Not to be outdone, now comes an opinion by the Wisconsin Supreme Court rejecting the Office of Lawyer Regulation's recommendation to disbar an attorney who misappropriated almost $50,000 from a client with diminished capacity while serving as a guardian.  

One big problem in this case was that the attorney did not set a separate account to manage the money in guardianship.  He simply deposited the money in his trust account, which is a problem in and of itself.  Then, on top of that, as in many of these cases, the attorney claimed he had poor accounting or record keeping, and thus that he did not keep good records of the money going in and coming out of his trust account.

The attorney's claims are designed to suggest that he was merely negligent and that the fact he ended up misappropriating client money was not intentional.  Making the distinction between negligence and intent can be critical to avoid disbarment, of course; and here the court apparently bought the lawyer's argument.

I guess I understand there can be a distinction between negligence and intent, but at some point we have to decide how serious we are about misappropriation.  For me, the distinction is irrelevant.  If an attorney is so negligent that he or she can't figure out they are stealing client money, they should not be allowed to represent clients.  

The Wisconsin case is even worse because the attorney had been disciplined in the past for trust account violations.  So here we are dealing with an attorney who claims he was negligent when, in fact, he had been disciplined in the past.  I don't buy it.  Although I tend to be a hard-liner on this issue, I will not discard the possibility that I can be convinced to not disbar an attorney for a first offense if I am convinced the problem was caused by pure negligence.  But here we are dealing with an attorney who knew, or should have known, what he was supposed to do and decided not to change his practices.  I agree with the OLR's recommendation.  The attorney should have been disbarred.

Investigation based on complaint about anonymous criticism closed

Back in January I commented on a complaint filed by a law professor against a blogger for what the professor called cyber-bullying or harassment.  The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger.  Even though, I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions.  If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different.  However, it seems like the issue is now closed.

Sunday, July 20, 2014

Are lawyers meeting the standard of competence related to knowledge about "technology"?

A recently adopted amendment to the comment of Model Rule 1.1 (on competence) explains that being "competent" requires lawyers to understand "the benefits and risks associated with relevant technology."  Presumably, therefore, lawyers who do not understand the technology they are currently using in their practice can be found to be incompetent and, thus be subject to sanctions for a violation of the rules of professional conduct.  Also, as everyone probably knows, another rule requires lawyers to use reasonable care in protecting the confidentiality of client data.

Because client data is often stored and shared using "technology", it is interesting to ask whether lawyers truly understand the implications of using that technology to handle the data.  Are lawyers really competent in this area of the practice of law?  Are lawyers really using reasonable care when attempting to protect the information?

The results of a recent Lexis/Nexis survey suggest that the answers to both questions is no.  The survey asked about the tools lawyers and legal professionals are using to protect their clients’ privileged information and according to some commentators, 77% of the lawyers surveyed did not have adequate security for their confidential client data.  Here is a podcast on the subject featuring two experts on digital security and a lawyer/journalist who has written about the implications of the survey.

Podcast on ethical issues related to the dissolution of law firms

The Legal Talk Network recently posted a podcast on the ethical issues related to the dissolution of law firms.  Go here to listen to it.