I always tell my students that because there are no penalties associated with specific rules of conduct, "you always risk disbarment." It is true that more often that not, courts try to be consistent with previous cases involving similar conduct, but that does not eliminate the possibility that judges will disagree on what the proper sanction should be.
Interestingly, for some reason, these types of disagreements are common in cases involving conduct outside the practice of law.
I am writing about this today because I just saw a story about a recently admitted lawyer in Florida who was suspended for stealing $760. The lawyer had been admitted to practice but was working as a cashier at the time. Adding insult to injury, she claimed she stole the money because of the pressure of paying her law student debt.
In any case, back to the topic at hand, the case made its way up to the Florida Supreme Court, where the judges increased the sanction from ten days plus one year probation to a three year suspension. One dissenting judge argued that was too harsh, but two others argued the lawyer should have been disbarred.
So how do you decide this case? There is a case in Illinois that summarizes the analysis as asking whether the facts show that the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.
Clearly, a person who steals money should not be trusted to handle other people's money or affairs. But does that mean that the person should be disbarred in every case? Does it matter that the amount stolen was relatively low? Does it matter that the lawyer had to pay her student debt (or that some have argued that the debt was caused by a school that allegedly took advantage of her)?
As the author of the article states, "Judges should be flexible on how lawyers should be disciplined. At the same time, practicing lawyers should be on notice that a relatively small crime can lead to disbarment which should deter them from committing similar acts."
In other words, "you always risk disbarment."