Excusable Theft: Part Two

by Mike Frisch

The assault on integrity in the District of Columbia bar discipline system continues unabated with a hearing committee report (not available in electronic format) in In re Herbst, Bar Docket No. 290-01 (HC Eight July 12, 2006). The lawyer had accepted a personal injury case and then forgot about it, entrusting the matter to a staff member who settled the case without the client’s authority and embezzled the proceeds. When the lawyer discovered this two years later (the client had obtained new counsel who had filed suit), he restored the settlement funds but again allowed the balance to dip below the amount owed (we call this misappropriation or lawyer theft). The hearing committee found serious incompetence, failure to communicate with the clients, failure to supervise employees and negligent misappropriation, but decided that a real sanction was not called for.

The reason? The lawyer suffers from a mild case of attention deficit hyperactivity disorder and had other “stressors” in his life. The sanction? Probation! The chair of the panel that authored this report has been rewarded by promotion to the Board on Professional Responsibility. Presumably the next mitigation case in D.C. will find that the theft was understandable and excusable because the lawyer really needed the money.

Note: Maryland gave the lawyer a reprimand in the same case.

[Update:  See a correction here.]