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Getting In Trouble: The Severe Sanctions; 2008-2010, Part Three

Part Three:  Failing to Learn from Experience

Of the 113 total Massachusetts BBO cases of serious discipline – disbarment, suspension, public reprimand – in 2010, at least 43 were handed down to what we’ll call “Experienced Massachusetts Lawyers” – those with more than ten years of experience. (We say “at least” because many of the remaining cases did not disclose the attorney’s years in the profession.)  At least 31 of the serious disciplinary cases involved “Highly Experienced Massachusetts Lawyers” – those with more than 20 years’ experience.  At least eight of the 29 disbarments were handed down to Experienced Lawyers.

Assuming lawyers get more competent as they go, and assuming incompetent attorneys are weeded out early on, to what can we ascribe this plenitude of long-time lawyers among our most severely disciplined?

Legal Malpractice and Repeat Offenders

Recidivism is a factor.  It seems likely that bad-acting lawyers have acted badly before, and will act badly again.  One of the most prominent aggravating factors when it comes time to determine the proper penalty is a lawyer’s history of disciplinary problems.  It is reasonable for a young, inexperienced lawyer who screws up badly to be given a little more latitude – a second chance.  Except for the most dedicated and precocious of malfeasors, it may simply take a decade or more for most bad-acting lawyers to get into enough trouble, enough times, to be hit with a suspension or disbarment.

This is borne out in the data. “Previous disciplinary issues” appeared as an aggravating factor for 19 of the 43 Experienced Lawyers – nearly half. It appeared in only four of the remaining 71 cases.  Simply by being in the field long enough to have screwed up before makes for a greater risk of serious punishment.

For example:  A 30+ year lawyer had been administratively suspended for accidentally not paying his bar dues.  He kept practicing law because he didn’t know about the suspension, and he stopped when he found out.  This ordinarily would lead to mild discipline, perhaps a private admonition.  But because he already had two prior admonitions, he was hit with a public reprimand.

The underlying assumption – that lawyers get more competent as they go – seems not always apt.  Experienced and Highly Experienced Lawyers were guilty of some of the most blatantly boneheaded conduct.

Examples of Disbarment

One Experienced Lawyer, a criminal defense attorney, bought illegal drugs by using money he stole from a “vulnerable,” disabled client.  He pled for a lighter punishment on the basis of his addiction and bipolar psychological disorder, but the mitigations were rejected because the violations continued even after he became sober.  Disbarred.

A real estate lawyer admitted to the bar in 1978 was disbarred for offenses that he blamed on alcoholism:  taking money from the client’s escrow, not reporting a DUI conviction to the BBO, and not cooperating with the bar counsel investigation.  There was also a noteworthy aggravating factor.  Years earlier, he had been brought before the BBO for similar offenses (commingling and stealing client funds, not cooperating with bar counsel investigation), and, blaming alcoholism, he resigned in lieu of disbarment.  But then in 2003, fourteen years after resigning, he was reinstated.  Now he blamed alcoholism again.  Disbarred.

A law librarian – and 20+ year attorney – was caught stealing funds from a law library.  Disbarred.

Other lawyers may have gotten too comfortable with cutting corners or gaming the system.  The too-clever-by-half lawyer who we discussed previously was suspended for serving an MSJ on a deceased opposing counsel?  He was Highly Experienced – a 25-year attorney.

An Experienced Attorney practicing real estate law received a public reprimand because he falsely notarized a signature he didn’t witness.

Disbarment Even Without Harming Client

Another Highly Experienced lawyer, a personal injury and criminal defense practitioner, was suspended even though no one was harmed by his actions, and in fact his only violation was failing to cooperate with the bar counsel’s investigation of a suspected violation! Bar counsel investigated him for bad record-keeping in business dealings with the lawyer’s friend.  No underlying violation was found, no one was harmed, but the lawyer still received a suspension – stayed on the condition that he’d receive counseling.  Even so, his name will forever be attached publicly to this discipline, incurred for nothing more than being uncooperative with bar counsel.
One of the perks of achieving prominence and success is having a staff to help with the important details.  But always keep in mind that even if it’s your staff that blunders, you’re ultimately to blame.  One lawyer with more than 30 years of experience was investigated and brought up on disciplinary charges because his assistant stole client funds.  It was determined that his only misconduct was that he’d given his assistant insufficient supervision.

It’s not clear what his punishment would have been had he not resigned (which it seemed like he was ready to do anyway), but another attorney, a personal injury lawyer who made essentially the same mistake, was hit with a six-month suspension – no small punishment! ¬– even though it was his paralegal who was at fault, and despite the fact that he made full restitution to the clients.  When it comes to your paralegals, secretaries, and administrative assistants, the buck stops with you.

Deductions From BBO Study

Which brings us to another bit of advice:  If you’re at the tail end of your career and you’re losing interest in practicing law, you should think about retiring of your own volition. Don’t force the bar counsel to make the decision for you!  Learn from the mistakes of the 30+year litigator who told his client that he filed suit for her, that he went to court for her, that he settled the case for her, that he received a settlement check for $31,000.  All of which was a lie. He eventually admitted that he had done nothing for her at all.

The bar brought him up on disciplinary charges, and he only avoided very serious punishment by agreeing to resign from the bar.

People – if they’re lucky – eventually get old.  Eventually there may come a time for even the best of us to retire.  None of us would wish to end our careers like the elderly lawyer  who slipped and hit his head on ice.  He suffered mental impairment, yet kept practicing for several years.  In the end, he was the subject of complaints for abandoning 28 patent applications. Because of the circumstances, he was allowed to retire without further punishment.  But the case went to the BBO, and is now part of the public record.

Angry clients, bar investigations, public embarrassment…. Not a very pleasant way to enter the golden years of retirement.  Better to accept the gold watch a few years early.