When we read about lawyers being sanctioned by the ARDC, we never think that we would do the things they did. Since we think we are honest and ethical, it is easy to believe that the lawyers who get sanctioned must be dishonest and unethical.
Admittedly, there are a few lawyers who commit truly reprehensible acts; hurt their clients; and bring the legal profession into disrepute. However, there are a few honest and ethical lawyers who were sanctioned by the ARDC because: (1) they made a poor choice; (2) they were overwhelmed by the demands of the practice of law; or (3) they were facing life challenges without support. Let’s take a closer look at each of these categories and see if you can spot the common theme.
In the poor choices category, these are the lawyers who made an error in judgment in relation to a single occurrence that will likely never happen again. I’m going to give you a few examples, but I’m not going to provide you with case names or numbers, because these lawyers have moved on from the occurrences and my point is not to embarrass them further even if is a matter of public record. My point is just to illustrate how even the most honest and ethical lawyer can make an error of judgment that results in an ARDC investigation and/or sanction.
Allison L. Wood
Here are a few noteworthy examples: the lawyer who blogged about the intelligence level of her clients and the judge; the lawyer who disclosed confidential client emails to defend himself against an attack on his integrity; the lawyer who didn’t know that she couldn’t share fees with a non-lawyer; the lawyer who thought he could represent the buyer and the seller because they were friends and agreed to it; the lawyer who signed his name on the personal injury settlement check without the client’s consent; the lawyer who failed to communicate with his clients or explain his fees; the lawyer who didn’t make a timely deposit to the IOLTA account; and the lawyer who failed to timely register and continued to practice law. How many of these situations resonated with you?
Then there are the lawyers who are overwhelmed by the demands of a law practice; and their mismanagement can result in a disciplinary complaint. Here, I will cite one case, just the number (not the name) because the analysis of the Hearing Board is worth quoting in full. In Case No. 92 CH 319 (Hearing Board June 5, 1995), approved and confirmed, No. M.R. 11563 (Sept. 29, 1995) it was noted that the attorney who neglected two criminal appeals, failed to communicate with his clients, failed to refund unearned fees to two clients, and converted one client's funds; “repeatedly took on more clients and cases than he could handle and had poor office management skills, but did not act out of dishonest motives or callous disregard for his client's interests.”
The attorney was suspended for two years, with all but five months stayed and placed on probation subject to his participation in a law office management program. Not surprisingly, lawyers who fail to manage their practice well are also at risk for a malpractice claim.
In the final category, we are referring to lawyers who committed misconduct during a time they were facing an illness, a divorce, the loss of a loved one; the implosion of their law firm; the care of elderly parents; the burden of unexpected expenses; or burn-out from the never ending challenge to bill more hours. While most of us can recover from life challenges and continue to provide quality legal services to our clients; some lawyers struggle harder because they have limited resources or support.
For example, a solo practitioner that needs hospitalization often does not have someone else to watch the store until they return. Likewise, an attorney with a substance abuse issue or a mental condition that is not being managed may begin to neglect client matters or convert funds. Notably, 29% of the disciplined lawyers in 2017 reported a substance abuse or mental health issue.
Every sanctioned lawyer is not a bad person and everybody makes mistakes. The common theme of these sanctioned lawyers was their failure to ask for help when they needed it. Lawyers who are uncomfortable with being the client or the patient need to adjust their lens to the bigger picture. If the lawyer had sought the advice of ethics counsel before making a poor choice; or sought advice from other lawyers to better manage their practice; or sat down with a clinical professional at Lawyers’ Assistance Program to discuss their personal challenges; many of these cases could have been minimized their disciplinary risk or avoided it completely.
Lawyers who ask for help when they need it will be able to save their reputations; protect their clients; and maybe even save their own lives.
Allison L. Wood is Principal of Legal Ethics Consulting, P.C. in Chicago.
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