Not Unjust

An attorney has been censured by the New York Appellate Division for the First Judicial Department as reciprocal discipline for a Louisiana sanction

Respondent admitted that she knowingly, but not intentionally, violated Louisiana RPC 1.15(a) and although no client was harmed by her misconduct, her accounting practices created the potential for harm. The only aggravating factor found was that respondent had substantial experience in the practice of law (ABA Standards for Imposing Lawyer Sanctions § 9.22[i]). The mitigating factors applicable to the matter were the absence of a prior disciplinary history, the absence of a dishonest or selfish motive, her divorce (discussed below), her cooperation with the disciplinary proceeding, her timely good effort to rectify her misconduct, and her remorse.

Respondent consented to discipline in the form of a six-month suspension, which suspension was to be fully deferred subject to her successful completion of two years of supervised probation with conditions, including regular audits of her IOLTA account by a CPA to be submitted quarterly to the ODC. In addition, respondent was required to complete at least six hours of her mandatory CLE requirements in law office practice/client trust account management, as well as to successfully complete the Louisiana State Bar Association’s Trust Accounting Program before the end of the probationary period.

By order dated September 15, 2017, the Supreme Court of Louisiana accepted the petition for consent discipline, found respondent guilty of violating Louisiana RPC 1.15(a), and imposed the discipline agreed to.

The attorney objected to reciprocal discipline

Respondent essentially argues that it would be “unjust” under 22 NYCRR 1240.13(c) for this Court to impose reciprocal discipline because her discipline in Louisiana was not the result of a complaint by a client; in the three to four months which preceded issuance of the dishonored check at issue, her bank changed its procedures and no longer allowed her online access to her trust account, as a result of which she had to email her banker to make transfers from the account which led to problems as she had several accounts with the bank; and her bank’s untimely reporting of the dishonored check made it difficult for her to provide detailed answers to the ODC’s questions arising from its audit of her trust account, which covered an 18-month period.

Respondent also cites to the mitigation recited in the joint petition for consent discipline, the fact that during the period at issue she was distracted by marital problems which resulted in her filing for divorce, and that she has never practiced law in New York and doubts she ever will. Respondent argues further that New York law is unclear as to whether maintaining earned legal fees in an attorney trust account for an extended period of time rises to the level of professional misconduct warranting discipline.

The court rejected the arguments

Respondent was advised of the allegations at issue, she was represented by counsel and freely admitted to commingling in violation of Louisiana RPC 1.15(a), and consented to the discipline imposed by the Supreme Court of Louisiana. In addition, the Louisiana Supreme Court’s misconduct findings are sufficiently supported by the record, which includes respondent’s admissions. Further, the misconduct for which respondent was disciplined in Louisiana would constitute misconduct in this state in violation of rule 1.15(a) of the New York Rules of Professional Conduct (prohibition against commingling attorney’s personal funds with client funds).

(Mike Frisch)