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.
