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| Integrity:
That Initial Disbarment
cases give rise to all sorts of emotions for the rest of the bar. Many are outraged or disgusted by the callous
behavior of their peers. Others
are grateful or at least relieved that the system has eliminated an
unworthy practitioner. A few
may feel sympathy for the tragedy that has befallen the individual
lawyer. Some lawyers worry that such cases will further
erode the profession’s image. Still
others are frightened when they read about the latest excommunication
of another bar member. At a
recent seminar, a lawyer commented, “When I read those disbarment
opinions, they scare the hell out me and my practice does not even
require me to handle client funds.” The
underlying reasons for the behaviors resulting in disbarment are numerous
and varied. Greed, pride, ego,
financial distress, personal problems, and the inability to tell others
“no,” especially family members, are the explanations offered by many
lawyers who are disbarred. Fewer
cases involve inherently dishonest individuals who, for one reason
or another, successfully avoided detection through the character and
fitness examination process. Disbarments
are vital to a lawyer discipline system. Aside from purging those who present serious
risk of harm to clients and others, disbarments validate the legal
profession’s commitment to self-regulation.
They may also deter other lawyers from engaging in similar
behavior. In short, disbarments are a necessary (and also
important) evil. Yet
despite my 20 years in the business of disciplining lawyers, many
disbarments still manage to bother me personally.
In addition to prompting all of the emotions experienced by
other lawyers, disbarments or disbarment decisions have caused me
to experience the occasional bout of insomnia or nausea.
It is hard to not empathize with someone’s loss of vocation
and the collateral consequences to the lawyer’s family and others.
Possibly because I want to make handling disbarment cases more
palatable, or maybe just my morbid curiosity, I have over the years
began to take a somewhat more scientific approach to disbarment cases. What caused the lawyer to steal and why have
become almost equally as important to me as how the theft was accomplished
and how much money was taken. Oftentimes
the reason behind the lawyer theft is readily apparent from the investigative
facts and documents. Where
it is not, some disbarred lawyers will speak freely about the circumstances
that motivated them to go awry. Others
say very little or nothing due to shame, embarrassment, a genuine
lack of insight into their behavior, or because of the potential for
criminal prosecution. When the opportunities have presented themselves,
I have not hesitated to ask “Why and how do you believe this happened?” From
these observations and interviews, it has become clear that the reasons
why lawyers steal are varied and often unique to their own personal
circumstances. At the same
time, the explanations for how these lawyers came to rationalize their
use of client funds are eerily alike. Two
disbarment cases best illustrate these points.
One involved a relatively young lawyer who misappropriated
nearly $1 million from more than 20 clients.
The other was a lawyer in the twilight of his career who had
taken less than $50,000 from a single client.
Almost immediately upon receiving his client’s complaint, the
older lawyer made full restitution, whereas the young lawyer was unable
to repay any of his victims, leaving the Client Security Fund to rescue
the casualties of his thefts. Other
notable distinctions were that the younger lawyer was living beyond
his means and used the embezzled funds to fuel an excessive lifestyle. In contrast, non-law-related business reversals
had placed the older lawyer in a position where the stolen funds were
used to pay for basic necessities.
One of the lawyers was well-known in the community, while the
other had practiced in virtual anonymity.
One was a general practitioner, while the other practiced exclusively
in injury law. Apart from both lawyers’ refusal and inability
to seek the help of others, the facts and circumstances of these two
disbarment cases had very little in common. Interviews
with both lawyers, however, revealed an almost indistinguishable explanation
for how they came to misappropriate client funds. When asked to pinpoint the cause of their respective
downfalls, both identified their very first use of client funds as
the compromise of integrity that began their slippery slope
to disbarment. Both confessed to initially “borrowing” or “using”
a nominal amount of client trust funds.
Although neither intended to permanently deprive clients of
a single dime, each lawyer reported experiencing severe distress over
the temporary use of even a small amount of funds.
Replacing the client funds ameliorated this distress for both
lawyers and, according to one, emboldened him: “My temporary financial
crisis was addressed, no one knew the difference and no client was
in the least bit harmed.” Both
lawyers repeated this pattern of using and replacing client funds
until, as they explained, it became psychologically easier and easier
to access client money. One
explained that his repayment of initial thefts enabled him to rationalize
subsequent thefts in larger amounts.
According to this lawyer, “Because I had always repaid the
earlier amounts I worried less about not only whether to take the
funds, but also whether I’d be able to pay it back.” When
eventually both lawyers encountered difficulties replacing the missing
funds, they found it necessary to lie to clients or others in order
to conceal their thefts. “I
knew it was just a matter of time before I got caught, but I still
couldn’t bring myself to admit to the investigator that I had taken
client money,” explained one lawyer. Said the other, “In the end I was afraid to
answer my phone — I didn’t have their money and had told so many lies
I could no longer keep them straight in my head.”
Many
lawyers will read this column and think, “This doesn’t apply to me
— I would never use or even borrow client funds.”
To a certain degree, they are correct.
The number of lawyers who use client funds is minimal. Then again integrity compromises are not limited
to misuse of client funds. The
occasion to compromise one’s integrity occurs daily for most lawyers. Opportunities for integrity compromise can include
such benign tasks as executing and notarizing documents, communicating
with clients, responding to discovery and client billing. Illustrations
of integrity-eroding compromises are documented in lawyer discipline
decisions and elsewhere. Failing
to comply with simple notarization formalities could be the initial
compromise leading to unauthorized signatures1 and forged or fraudulent
legal documents. The white lie about the document that went out
in today’s mail might be the initial compromise that later transforms
itself into wild tales about fictitious hearings or settlements that
never took place.2 Unauthorized
“rounding up” of one’s billable hours could be the precursor to billing
fraud.3 Candor
and truthfulness are the foundation of our adversarial system of justice. It is no coincidence that the vast majority
of those who are denied entry into the profession, and those whose
exit is hastened from it, are found lacking in these characteristics.
An
adversarial system places great demands on the integrity of those
who administer it. Client demands
can further amplify this burden. The
public that calls us to be socially responsible professionals are
the same people who want a “hardball lawyer” when they have a legal
problem.4 Few lawyers would ever think of “borrowing”
client money. This sort of
compromise goes beyond that which could be justified by all but a
very few lawyers. Even so, we all must continue to be vigilant
for other forms of compromises that potentially jeopardize our integrity. If not, like the disbarred lawyers in this article,
we risk becoming psychologically desensitized to the type of self-consciousness
that is integral to good lawyering. NOTES 2.
See e.g., In re McCoy, 447 N.W.2d 887 (Minn. 1989) (lawyer disbarred
for inter alia telling clients he had filed adoption petition and
having clients stand in hall outside courtroom while lawyer purportedly
attended adoption hearing that never took place). 3.
Leona Helmsley claimed in 1994 that her real estate lawyer billed
her for a 43-hour day. See
Andrew Blum, “The Empress Strikes Back,” Nat’l L.J., July 11, 1994. 4.
See e.g., Brewer & Bickel, “Etiquette of the Advocate,” Texas
Lawyer (March 21, 1994). KENNETH
L. JORGENSEN is director of the Office of Lawyers Professional
Responsibility. He has served
the cause of lawyers' self-regulation in Minnesota for over 20 years. |
