June 4, 2006
Another new feature at The Briefcase: Sundays will be devoted to The Rant, a screed by yours truly on a recent case, a law, or anything else that strikes my fancy. The only promise I make is that it will not reach the level of pathos achieved by Kelly Droughns, wife of Cleveland Browns running back Reuben, who expressed her relief at her spouse’s recent acquittal of drunk driving charges by proclaiming: "It’s been hard on us, hard on Reuben. We’re taking a limo everywhere, even to the grocery store."
is the recent disciplinary case of Cuyahoga County Bar Assn. v. Ballou. Ballou was approached by a prospective client who was facing eviction from his house, and agreed to represent him in return for a $1,000 retainer. When the client failed to come up with the retainer, Ballou informed him that he would not appear at the eviction hearing. He didn’t, nor did the client, and the eviction was granted. For this, Ballou was given a public reprimand.
Let me repeat that: for this, Ballou was given a public reprimand. Yes, there are other facts in the story, but none of them had any bearing on the outcome, except this one: Ballou had represented the client once before and had been gracious enough to continue his representation even though the client didn’t pay promptly. Thus, according to the Court, the client "had come to expect... that respondent would accept late payments while continuing to provide representation."
It’s hard to know where to begin with this. We could start with the difference between "late payment" and "no payment." Or we could start with the relator’s and the Court’s reliance on the fact that Ballou hadn’t sent the client a written notice of withdrawal, when he hadn't even entered an appearance in the first place and, as the dissent points out, the Court has previously held that the disciplinary rules do not require that. Or we could start with how difficult it is to understand how the client should have relied on Ballou to attend the hearing, when the client himself didn’t show up. Or we could just wonder why the Cuyahoga County Bar Association felt it was necessary to pursue something like this against an attorney who’d practiced law for a quarter of a century without any other disciplinary action being taken against him.
A lot of lawyers think that the disciplinary system is slanted against small firms and solo practitioners, and a case like this goes a long way toward confirming that. Imagine that XYZ Corp. gets served with a motion for preliminary injunction, and goes to one of the big law firms for representation at the hearing. Big Law Firm, which has represented XYZ before and found them a slow pay, says it wants fifty large up front to get involved. A few days before the hearing, Big Law Firm calls up XYZ and tells them that, since they haven’t come up with any coin of the realm, Big Law Firm is going to be a no-show at the hearing. Anybody with an IQ above that of drywall knows the chances of Big Law Firm getting sanctioned for that are slim and none, and Slim just rode out of town.
I’m not big on defending lawyers, especially on ethical matters, which will probably be the subject of a Rant down the road. The weekly stroll through the disciplinary cases in OBAR reminds us that too many of us do some bad stuff: lying to clients, stealing from clients, and the like.
But this was simply a bullshit case, and nobody in the Bar Association who was involved in unnecessarily dragging this lawyer’s name through the mud should take any pride in it.