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Knowing your limits, and other disciplinary tales

There comes a point in just about every attorney's career when you realize you're in over your head.  Most of the time, it's because you're spread too thin.  You've just got too much going on, and it's gotten to the point where stuff's falling through the cracks:  you're missing deadlines, you're not keeping track of pretrials, you're walking into trials without adequately preparing for them.  That's bad enough.

But there's nothing to compare with the gut clench that comes when you're lying awake at three o'clock in the morning thinking about that case that you've got, the one you never should have taken, the one you have no idea what to do with, the one that you know you're going to lose simply because you don't know what you're doing, and there's not anything you can do about it.

My guess is that Steven Hales had more than a few mornings like that.  Hales was one of the ten lawyers disciplined by the Supreme Court last week, and his problem began in August of 2003, when a family friend contacted him about a medical malpractice claim she had for her mother's death.  The case was being handled by a guy who did a lot of malpractice work, and he'd gotten experts, taken depositions, advanced about $10,000 in expenses, and negotiated a high-low settlement agreement with the defendant.  The client asked Hales to review the settlement, and that's where he made his first mistake:  he told her he thought she could get more.  At this point, he'd been a lawyer for four years, and had been doing general litigation and some bankruptcy for about a year.

Long, and painful, story short, the client hired Hales, he couldn't find anybody to help him handle the case, he couldn't find experts (the one hired by the previous lawyer had retired, meaning he no longer qualified under the evidentiary rules), and nine months after he'd taken over the case, the court granted summary judgment against his client.

Now, I'm sort of old school on this.  Yeah, there are ethics rules prohibiting a lawyer from taking a case where he lacks the competence to handle it, but that's one of the reasons we carry malpractice insurance.  Turns out that didn't do Hales' client any good, because he never put his carrier on notice, so they denied coverage.  Hales himself went bankrupt on the clients' $280,000 default judgment against him for malpractice. 

For all that, Hales didn't come out too badly.  In Toledo Bar Assn v. Hales, the court slaps him with a two-year suspension, but suspends all but six months of it.  It even rejected Hales' making restitution as a condition of reinstatement, finding that doing so would violate the bankruptcy laws, even though there's law from other jurisdictions that it wouldn't. 

In fact, the somewhat surprising thing is that the court seems to have adopted a more lenient attitude.   In Cuyahoga County Bar Assn. v. Poole, the board had recommended Poole be suspended for two years, with 18 months stayed, for taking money in two cases, not doing the work, and delaying his response to the disciplinary investigation.  In one of the rare cases of the court imposing a lesser sanction than recommended, the court found that the lack of prior misconduct, Poole's remorse, and his restitution warranted only a year's suspension, with all of it stayed.  An in another case from up here by the lake, the board had held that repeatedly lying to a client warranted an indefinite year suspension, but the court softened that to a two-year suspension, with one stayed, largely because there'd been no prior record of disciplinary action.

What reading the disciplinary cases really teaches you is the infinite variety of ways that lawyers can contrive to screw themselves up.  Exhibit A in that regard is Frank Simmons, who decided to represent a couple of clients up in Michigan, despite the fact that he was only licensed to practice law in Ohio.  Hey, it's close, right?  His sister was licensed in Michigan, so Frank signed the pleadings on behalf of the law firm, "Simmons & Simmons," and in one case signed her name to it.  The problem, of course, is that "Simmons & Simmons" didn't exist, and the sister didn't know that Frank was doing this.  For his troubles, Simmons got a one-year suspension with six months stayed. 

That's one family Christmas gathering I'd pay money to see.


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