Achieving Finality In Bar Discipline

One of the difficulties that I encountered as a disciplinary prosecutor related to the complaint-driven nature of the process. Bar Counsel as a general proposition does not go looking for problems in a particular attorney’s practice (with the exception of random audits of trust accounts). Rather, it responds to the complaints that come in the door. Often, Bar Counsel is well into a prosecution when a new complaint or series of complaints appear. Do you press on in the old case or wait for the new case to catch up?

A case decided by the Kansas Supreme Court exemplifies the problem. The lawyer initially was the subject of two complaints; one involved a missed statute of limitations, the other a failure to provide information to an insurer with a subrogation interest. The lawyer also failed to cooperate in the disciplinary process. Eventually, a hearing panel accepted and recommended favorably on a probation plan as the appropriate disposition.

Charges in the above matter were filed in October 2004 and argued before the court in October 2006. At oral argument, the court was advised by the Disciplinary Administrator that “further problems” with the attorney were being investigated. Additional charges were filed in March 2007, involving a complaint that related to the attorney’s operation of his escrow account. He did not have the required records, blaming a computer crash. To date, he cannot fully account for the funds in the account. According to the Disciplinary Administrator:

       “This disciplinary case is highly unusual. The respondent has had money in his trustaccount for a number of years for which he could not identify the ownership. The respondent wasafforded every opportunity by the panel hearing his case to identify and distribute those funds.The respondent failed to do so. To date, no proof has been provided by the respondent that allfunds have been distributed from his trust account. The respondent is not capable or fit topractice law based on the findings made by the panel in this case. The panel’s recommendation ofindefinite suspension should be accepted by this court.”

The court held the probation recommendation until there was a resolution of the second case. It then agreed that an indefinite suspension was the appropriate resolution of all the matters.

A related issue involves an ongoing prosecution that Bar Counsel thinks will result in disbarment. As new cases come in, its tempting to simply hold them for reinstatement purposes, as you cannot get consecutive disbarments. You may be left holding the bag (or being accused of lack of diligence) when the case is over and a significantly lesser sanction has been imposed. (Mike Frisch)