Employee Theft Draws Strong Rebuke

A busy day for an ethics blogger.

The Florida Supreme Court has a dim view of employee merchandise theft

This case is before us on the review of a referee’s report recommending that Respondent, Jacqueline Marie Kinsella, be found guilty of various violations of the Rules of Professional Conduct arising from her theft of money from Kohl’s Department Store, where she worked as an employee. After finding numerous mitigating factors, the referee recommended that Kinsella be suspended from the practice of law for ten days. Neither party contested the findings of guilt, but The Florida Bar sought review of the ten-day suspension, arguing in favor of a rehabilitative suspension of ninety-one days. After reviewing the referee’s report, we suspended Kinsella immediately and issued an order to show cause why she should not receive a more severe sanction up to and including disbarment. Having considered the record, the responses to the order to show cause, and our prior case law, we conclude that a more severe sanction than a ninety-one day suspension is required and hereby suspend Kinsella from the practice of law for three years.

The misconduct

Kinsella was admitted to The Florida Bar in February 2016. On three separate occasions between April 21, 2016, and May 6, 2016, Kinsella stole money from three different cash registers at the Kohl’s Department Store where she worked. She stole $140 on April 21, 2016, $100 on April 25, 2016, and $520 on May 6, 2016.

She was cooperative after her arrest

The referee found that Kinsella fully cooperated with law enforcement and the Bar, her misconduct was not related to alcohol or drug abuse or a gambling addiction, and none of the stolen funds were related to the practice of law. Kinsella testified during a sworn statement and at the sanction hearing that she voluntarily entered into a treatment contract with Florida Lawyers Assistance, Inc. (FLA) and has made progress in addressing the issues that led her to engage in these acts of misconduct. She reported that her treatment involves debt management and financial counseling. Kinsella admitted that she took the funds from Kohl’s because she had unresolved debt. The referee found that Kinsella’s financial problems existed at the time she applied for membership to The Florida Bar and continue to persist today. Lastly, the referee found that Kinsella demonstrated significant remorse during her testimony at the sanction hearing.

The court concluded that its precedents call for a lengthy suspension but not disbarment

While her misconduct was inexcusable, Kinsella’s theft did not involve client funds and was unrelated to the practice of law. Moreover, Kinsella cooperated with authorities in the aftermath of her crime.

There were dissents over the sanction.

Chief Justice Canady

I agree with Justice Lewis that Kinsella’s misconduct requires disbarment. There is no reason to believe that a lawyer who has betrayed her employer by stealing from the employer will not betray her clients by stealing from them. There should be no place for thieves in The Florida Bar.

Justice Pariente 

I begin with the acknowledgment that the conduct of Ms. Kinsella, freshly out of law school and having passed the Florida Bar Exam, cannot be excused when she stole $140, $100, and $520 from Kohl’s Department store where she was working over a two-week period. But, as Kinsella does not attempt to justify her actions, has shown extreme remorse, and never contested the charges filed by The Florida Bar, the only question in this case is the appropriate sanction: Should Kinsella be given a ten-day suspension, as recommended by the referee who observed Ms. Kinsella, a ninety-one day suspension as requested by The Florida Bar, a three-year suspension as held by the majority of this Court, or disbarred as urged by the dissent?

…Kinsella was punished in a criminal court of law and has paid her debt to society. Both the State Attorney and the referee concluded that Kinsella’s misconduct did not warrant a severe sanction. Even the Bar has not advocated for a suspension greater than ninety-one days in this case. In light of all of these findings, it is clear that the Court’s imposition of a three-year suspension is unnecessary and overly harsh. And, certainly, the findings do not justify the dissents’ view that disbarment is warranted. Thus, I would follow the Bar’s recommendation and impose a suspension ranging anywhere from ninety-one days to one year.

Justice Lewis

Again, the fact that Kinsella’s theft from her employer was not related to the practice of law is irrelevant. In my view, Justice Pariente’s attempt to draw distinctions between where criminal conduct occurs and different levels of criminal sophistication is fanciful at best. An individual physically removing money from a cash register and an individual conducting an electronic credit card scam are both thieves. Further, the notion that Kinsella’s conduct is not comparable to other cases involving misuse of client or law firm funds is severely misguided. Attempts to distinguish thefts related or unrelated to the practice of law ignore the common denominator at issue—theft. A thief is a thief. Kinsella’s conduct was dishonest and unlawful and hollow explanations pointing to an individual’s circumstances cannot diminish the fact that such a deceitful act occurred on three separate occasions.

Let it be clear, debt can be no excuse for such egregious conduct—many recent law school graduates have unresolved debt. Negative public sentiment toward the legal profession would surely increase if those who make the perilous mistake of engaging in this type of behavior are not rightly punished. An individual cannot be both a lawyer and a thief.

This Court has a responsibility to protect the public’s trust and confidence in the legal profession. Those who are guilty of theft tarnish all of us. To impose anything other than disbarment is a disservice to Florida’s court system and democracy. Kinsella’s three-year suspension undermines professionalism and creates fertile ground for public distrust.

Kinsella should be disbarred. For these reasons, I dissent

I actually prosecuted a similar case to a similar result, a one-year suspension with fitness.

Respondent was admitted to our Bar in June 1991 and the Maryland Bar in 1992, but has never actually practiced law.   In 1995, respondent was employed for the summer as a night bus driver in Ocean City, Maryland.   On August 10, an undercover police detective and another person boarded the bus respondent was driving.   Each paid with a marked bill, and respondent placed both fares in a bag next to his seat.  (He presumably should have placed them in the ticket money box.)   The detective and his companion then observed respondent do the same with other fares as passengers boarded.   The detective eventually exited the bus to meet a patrol car, but his companion remained on board and saw respondent remove several dollars from the ticket money box and place them in his pocket.

The case has a interesting history. 

In D.C., conviction of a crime involving moral turpitude requires disbarment. Stealing from one’s employer usually suffices to make out a case for such a finding.

The hearing committee bought his claim to it being a one time crime.

I argued that his plea established that he had done the deed multiple times (the transcript so stated). Notably, his consistent shortages were why a cop was surveilling him in the first place..

Nonetheless, the court deferred to the “one time” finding and avoided disbarring him. 

So far as I am aware, he was never reinstated.

Another notable example of D.C. avoiding imposing disbarment for theft can be found here.

The case involves customer theft (and a fairly sophisticated one) on multiple occasions.

The case is distinguishable from the Florida case because the victim was Target, not Kohl’s.

And the convicted attorney was not fresh out of law school per Wikipedia. (Mike Frisch)