55 Ways to Lose Your License
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (August
2009)
Periodically,
people who work in the area of professional responsibility are asked whether
there are any discernible patterns in the reasons why attorneys are disbarred
or suspended from the practice of law. Presumably,
those asking hope to find a method to predict and thereby prevent serious
misconduct. Others, who believe that
lawyers are not subject to discipline often enough, or harshly enough, ask
sarcastically, “Just what does it take for an attorney to lose her license?”
We lawyers are a
creative lot, and the methods of and reasons for egregious misconduct are
myriad. So, with full apologies to Paul
Simon,Ftn 1 we
present a study of the last 51 Minnesota lawyers to be either disbarred or
suspended.Ftn 2
Some
Statistics
The study covers the
time frame from the beginning of June 2007 through the end of June 2009 (25
months). On average, approximately 40-45
lawyers are publicly disciplined in Minnesota each calendar year, which
includes those given public reprimands and probation in addition to those
disbarred and suspended. Of those public
matters, again on average, 25-30 result in suspension or disbarment annually. So a study period slightly greater than two
years was needed to approximately fulfill the requirements of the song lyrics.
Ten of the 55
discipline decisions in the study resulted in disbarment. Ten more resulted in suspensions of at least
one year. The remainder were suspensions
of shorter duration (30-60-90 days), or indefinite suspensions either with no
minimum length or with a minimum of less than one year (6-9 months). Sixteen occurred in the seven months of 2007
included in the study, 22 in 2008, and 17 in the first six months of 2009, a
fairly regular flow of dispositions. In
fact, in only four of the 25 months were no lawyers suspended or disbarred by
the supreme court.
It should come as no
surprise that various forms of financial misconduct top the list of ways to
lose your license. Twenty-three of the
55 decisions involve—exclusively or in combination with other
misconduct—misappropriation of funds, commingling of personal funds in a
fiduciary account (especially if intended to hide assets from personal
creditors), and failure to maintain trust account records. Quite likely, such a finding would be
consistent with the results from any period of lawyer disciplinary decisions
chosen or from any other jurisdiction; our highest ethical obligation as
lawyers is the proper handling of other people’s money; any deviation from
absolute fidelity should result in serious discipline.
Other serious acts of
dishonesty form the next major category of misconduct that can lead to the loss
of a license. Twenty decisionsFtn 3 involve such forms of
dishonesty as lying to courts, to clients or disciplinary authorities;
fabricated, back-dated or falsely notarized documents or other evidence; and
acts of fraud. Three of the matters from
these major categories resulted in felony convictions.
Cooperation
and Other Factors
The other factor
commonly found in suspensions and disbarments is the failure to cooperate with
the disciplinary investigation, a factor in 17 decisions. On its face, lack of cooperation may not
appear to be of the same magnitude as serious acts of dishonesty or criminal
misconduct, but cooperation is taken very seriously by the supreme court. Without mandatory cooperation by an attorney
during an investigation or proceeding the disciplinary system simply cannot work,
for the refusal to respond or provide information in many instances may be
masking exactly the type of dishonesty that would have resulted in suspension
had the lawyer cooperated. Thus, the
discipline imposed for noncooperation usually ought to be as serious as the
misconduct that may be hidden.
Some other ways to be
suspended or disbarred are for an attorney with a lengthy disciplinary history
to commit additional serious misconduct, especially while on probation or while
suspended; to abandon a practice altogether and then not be found in the state
for service of a petition for disciplinary action;Ftn 4 or for an attorney to commit serious misconduct in
another jurisdiction in which the attorney is licensed. In those situations, reciprocal discipline of
the attorney in Minnesota by an abbreviated procedure is authorized.Ftn 5 This prevents the possibility that a suspended
or disbarred lawyer might set up a practice in a second state without notice to
that state’s public.
A somewhat novel way
to be suspended occurred three times during this two-year study period: failure
by a suspended lawyer to take and pass the multistate professional
responsibility exam. Rule 18(e), RLPR,
requires that lawyers who are suspended for 90 days or less, and therefore not
required to apply for reinstatement and have a hearing before a Lawyers Board
panel, must nevertheless take and pass the multistate PR exam within one year,
thus usually after the person is reinstated.
Failure to successfully to do so within the year can result in the
lawyer being indefinitely suspended anew until the test is taken and passed. Of the three lawyers who were so suspended
pursuant to this rule during this period, two were suspended for simply not taking
the exam and one for coming up one point short of a passing score. Only one of those three has subsequently been
reinstated.
The final “category”
is really no category at all—miscellaneous.
As noted, the reasons for loss of license are myriad, and some appear
only occasionally or once in a lifetime.
During the period studied many lawyers neglected files, but this alone
will rarely result in suspension (see
cooperation above, or repeat offenders).
Filing frivolous legal actions, however, especially after being warned,
has led to serious discipline. Assisting
suspended lawyers to engage in the unauthorized practice of law also resulted
in suspension. Tax misconduct can result
in suspension, most notably in the area of employer withholding taxes; this may
be viewed as akin to violating one’s fiduciary obligations in handling other
people’s funds generally. Finally in
this particular period a lawyer’s repeated failure to pay child support
obligations resulted in a criminal prosecution and disbarment.
Keep in Mind
It remains important
to note that the 51 lawyers responsible for these 55 ways represent but a
minute percentage of the lawyers licensed in Minnesota. Of note too is that virtually all the ways
discussed were entirely avoidable; lawyers basically “choose” to lose their
licenses. The overwhelming majority of
lawyers, however, never even approach the loss of their license due to
misconduct; almost all are trustworthy, competent and diligent and may never be
the subject of a lawyer discipline proceeding.
Notes