The Sin Of Inattention

An attorney who had allowed his personal injury practice to be run by a thieving paralegal was disbarred by the Maryland Court of Appeals

Attorney discipline cases that result in disbarment often find the attorney committing one of the seven deadly sins – e.g., greed, lust, sloth. This is not one of those cases. The sin in this case was inattention – inattention to clients, inattention to an attorney trust account, and inattention to the activities of a non-lawyer assistant in whom the attorney misplaced his trust and who misused the attorney trust account to the detriment of the attorney’s clients. Sadly, this too merits disbarment, as our regulation of the practice of law must protect the public not only from those attorneys who engage in deliberate, egregious acts of misconduct, but also those who fail to fulfill the routine duties of the profession that serve and safeguard their clients.

The court explained the nature of the duty to supervise non-lawyers

Under MLRPC 5.3(c)(2), four elements must be present to impute an employee’s misconduct to an attorney: (1) misconduct by the employee that would violate the MLRPC if done by the attorney; (2) partnership status or a direct supervisory relationship; (3) the attorney’s knowledge of the wrongdoing at a time when its consequences can be mitigated; and (4) the attorney’s failure to take reasonable remedial action.

The court noted

Ironically, on the record before us, it appears that Mr. Smith and his family members may have incurred the greatest monetary loss as a result of his misguided efforts to shore up his trust account with personal funds.

As to sanction 

Mr. Smith’s blanket delegation of authority to Ms. Staley-Jackson to communicate with clients, negotiate settlements, sign pleadings and other court papers, obtain client consent for settlements, and transmit and cash checks without adequate supervision relinquished his role and obligations under the disciplinary rules and was, at best, gross negligence. For example, when it became evident that his trust account was being invaded and payments were not being received by the appropriate payees, he was slow to investigate, to the detriment not only of his clients and the third party payees, but also of his own financial well-being as well. In attempting to make the trust account whole with family loans and out of his own pocket without conducting a thorough audit of the account, he delayed discovery of Ms. Staley-Jackson’s defalcation and effectively facilitated her final theft of funds. We need not pinpoint where along the spectrum between gross negligence and knowing misconduct he ultimately landed to conclude that his state of mind, while perhaps not evil, was not innocent…Given the volume and severity of Mr. Smith’s misconduct, including the resulting misappropriation of client funds and concealment of information from clients, the factors found in mitigation do not warrant a lesser sanction than disbarment.

The attorney is also admitted to practice in the District of Columbia. (Mike Frisch)