A Washington lawyer was disbarred last month by the state supreme court in a disciplinary case with an interesting array of issues: the heavy penalties for using trust account money to “rob Peter to pay Paul;” the danger of treating the representation of a relative too casually; “compassion fatigue” as a potential mitigating factor in lawyer discipline; and the application of the Constitutional protection against double jeopardy in the disciplinary setting.
Rob Peter, pay Paul
The lawyer was a sole practitioner with a personal injury practice. Alerted to overdrafts in his client trust account, disciplinary counsel investigated and found numerous irregularities:
- The lawyer transferred trust account money to his operating and personal accounts when they were overdrawn or short of funds, in the process converting more than $10,000 to his own use.
- He also failed to pay several clients the full amounts of settlements they were entitled to, and made misrepresentations to them in the process.
- The lawyer shuffled money in and out of the trust account, using funds properly belonging to one client to pay settlement amounts owed to others.
Misusing and misappropriating client funds in these kinds of ways is the most serious ethics breach in the rule-book, and the court found violations of Washington’s versions of Model Rule 1.15 (Safekeeping Property) and Rule 8.4(c) (dishonesty, fraud, deceit and misrepresentation). In Washington, as in many jurisdictions, the presumptive penalty is disbarment.
All in the family
Additional counts of the disciplinary complaint involved the lawyer’s representation of his nephew in a car accident case. There was no fee agreement, but the lawyer eventually settled the case for $90,000 and took a $20,000 fee. Later, however, after a change in Washington law, the tortfeasor’s insurer sent the lawyer more than $17,000 as an additional settlement payment. The lawyer failed to notify the nephew, signed his nephew’s name on the check and eventually disbursed it to his office account, using it to pay bills.
The lawyer testified that his sister — the client’s mother — authorized him to negotiate the check, and that the nephew’s drug problem made it inappropriate to give the additional settlement money to him. The sister had power of attorney over her son at one point, but it had expired long before the lawyer distributed the additional settlement funds to himself without the client’s knowledge or permission.
The court found that in addition to violating the trust account rules and converting the funds dishonestly, the lawyer violated the state’s version of Model Rule 1.4 (Communication).
The lawyer argued that the disciplinary board, which unanimously recommended disbarment, should have considered his emotional problems as a mitigating factor. In the same year that he committed the charged misconduct, he had lost three personal injury trials in a row. A psychiatrist testified at the disciplinary hearing that these losses and the lawyer’s over-identification with his clients led to “compassion fatigue,” a syndrome in which people in the helping professions become ill themselves as a result of working with traumatized populations.
The lawyer’s expert witness said that symptoms of “compassion fatigue” can include becoming “jaded,” and mentally disassociating from daily life, and that it had caused the lawyer to become careless and to avoid the stress of dealing with his bookkeeping.
The court accepted the concept of “compassion fatigue” as a potential mitigating factor. Under Washington law, the mitigating factor of emotional problems requires merely some connection between the asserted problem and the misconduct; the court found that the psychiatrist’s expert testimony established that connection at least as to some of the lawyer’s misconduct.
Nonetheless, the court said, under the totality of the circumstances, the lawyer’s emotional problems carried “little weight.” “Compassion fatigue” did not actually cause the lawyer to forge his nephew’s signature, or convert client funds, the court said; and he testified that he was still aware of his ethical obligations.
In order to justify mitigation where the presumptive sanction is disbarment, the court noted, the circumstances must be “extraordinary.” Here, they were not, and the failure to preserve the integrity of his clients’ funds led the court to rule that the lawyer’s emotional troubles could not reduce the sanction.
Double jeopardy and lawyer discipline
Last, the lawyer argued that being charged with multiple rule violations stemming from single instances of misconduct meant that he was being punished more than once for the same conduct, in violation of the Constitutional protection against double jeopardy.
This was an issue of first impression in Washington. However, numerous jurisdictions have considered whether the double jeopardy clause is implicated in lawyer disciplinary proceedings, and answered “No,” and the Washington Supreme Court was persuaded by these holdings. The weight of authority is that the sanctions for professional misconduct — reproval (or admonishment or reprimand), suspension or disbarment — are not criminal sanctions (which consist of fines or incarceration). Thus, disciplinary sanctions are not “punishment” for purpose of the double jeopardy clause, the court held.