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Two cases on lawyer discipline

I don't usually do disciplinary cases here, but there were a couple which caught my eye the past week or so.

The first case is Cleveland Bar Assn v. McMahon, which involved McMahon's representation of a client in an automobile accident case.  The insurance company insisted that their driver, Jerri Marrs, wasn't at fault, although she'd been ticketed.  In an effort to persuade them of the contrary McMahon sent the company a letter reciting the transcript of Marrs' appearance in the municipal court, in which she readily acknowledged she had been to blame for the accident.

There was only one problem:  Marrs had never appeared in the municipal court.  McMahon had fabricated the entire thing. 

McMahon had been practicing for 32 years without any prior disciplinary record.  No harm was done, because the insurance company checked the municipal court docket and found that Marrs hadn't even appeared, and so rejected McMahon's fictionalized version of what had transpired there.  The opinion indicates that "[McMahon's] misdeeds. . . occurred during a particularly stressful period," but doesn't explain what that stress was.  The board recommended a six months stayed suspension, the but the Court imposed an actual suspension for that time. 

It may be that McMahon is intended as a warning shot across the bow, much as the Court did 12 years ago in the Fowerbaugh case, where it laid down a flat Syllabus rule that where misconduct involved "dishonesty, fraud, deceit, or misrepresentation. . . an attorney will be actually suspended from the practice of law for an appropriate period of time."  The opinion in McMahon closes with the observation

Lawyers who choose to engage in fabrication of evidence, deceit, misrepresentation of facts, and distortion of truth do so at their peril. They are admonished that the practice of law is not a right, and our code of professional misconduct demands far more of those in our profession.

Of course, the Court's citation to numerous cases in McMahon where a lesser sanction has been imposed for those offenses is an implict acknowledgment that Fowerbaugh doesn't really mean what it says.  Maybe it does now.  Then again, the the myriad factors which come into play in disciplinary cases demonstrate the wisdom of Justice Resnick's dissenting view in Fowerbaugh that the Court's function is "to give guidance as to what conduct constitutes a violation of the Disciplinary Rules," and not "use syllabus law to mandate a particular sanction once a violation has been found." 

The result in the second case is more questionable.  Disciplinary Counsel v. Rafidi involved a Youngstown lawyer who was representing a Mr. and Mrs. Glenn in a bankruptcy.  A cousin of Mr. Glenn, named Richard North, came to visit them.  A couple of nights later, DEA agents showed up at the Glenn's house and told them that North had been arrested for drug trafficking, and asked to search the house.  Glenn consented, and the next day went to the DEA office for an interview.  Glenn got the impression the agents were accusing him of involvement in the drug scheme, so he terminated the interview and called Rafidi.

Rafidi quoted him a fee of $500 to talk with him, but accepted $250.  During the conversation, Rafidi asked if North was represented by counsel.  Without telling Glenn, Rafidi subsequently visited North in jail, and agreed to represent him for a $20,000 fee.  He did not disclose the dual relationships to either client, and obviously didn't get a waiver of the potential conflict from them.  Glenn was never contacted further by the DEA, and wasn't charged with anything relating to the crime.  The Court's opinion notes that "respondent was able to negotiate a plea for reduced charges, and North received a prison term significantly reduced largely through respondent's efforts." 

Again, the board recommended a six-month stayed suspension.  Again, the Court rejected those recommendations, and instead imposed an actual suspension of six months. 

Rafidi obviously violated the rules against soliciting clients and representing multiple clients with conflicting interests.  On the other hand, there certainly was nothing particularly flagrant about Rafidi's misconduct.  Although he'd only been practicing since 2000, he didn't have any prior disciplinary record, either.  This is certainly not the first case involving solicitation or conflict of interest, but the Court's opinion doesn't contain any discussion of precedent as it pertains to the appropriate sanction, and in fact cites not a single prior decision on either of these issues.  The entire explanation of why the Court felt harsher discipline was warranted is contained in two sentences:

Respondent committed multiple ethical violations when he failed to disclose conflicts in his representation of two clients and he took advantage of an incarcerated individual's vulnerability to further his own monetary self-interest. We find that these actions warrant a stricter sanction than the stayed suspension recommended by the board.

It seems to me that a sanction for a disciplinary case should primarily include a consideration of the harm done by the violation and the lawyer's record of misconduct.  In both cases here, and especially in Rafidi's, the court does a poor job of explaining why those factors warranted the sanction that it imposed. 

In Fowerbaugh and other cases, Justice Resnick had argued that substantial deference should be paid to the board's decisions as to the appropriate sanction.  It's a closer call in McMahon's case than Rafidi's, but a legitimate argument could be made that the Court would have acted more appropriately had it exercised such deference in both cases.

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