What Does It Take to Get Disbarred?

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Published on 12/6/10

Being stripped of one's license to practice law is the most severe professional penalty a lawyer can receive.

The American Bar Association's Rule of Professional Conduct 8.5 states that a lawyer is subject to disbarment, or any disciplinary action, under the rules of the jurisdiction where that lawyer is admitted to practice, "regardless of where the lawyer's conduct occurs."

What conduct? The commentary on Rule 8.4 proposes that, "[a]lthough a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category."

A good illustration of such conduct can be found in recent press reports, including in the ABA Journal, regarding a Kansas City lawyer who was disbarred by the Kansas Supreme Court for shouting profanities at court clerks, brawling with court security officers and suggesting that a judge was a pedophile.

Other conduct, according to the ABA hearing panel, "resulted in two criminal convictions, a contempt adjudication that led to 120 days in jail, minor injuries to a United States Marshal, and an adverse impact on a [client's] military career" by causing a negotiated settlement in a disciplinary case to break down.

Interestingly, another allegation against the lawyer that was not explicitly cited as a reason for disbarment was that he originally agreed to represent the military client for a flat $3,500 fee, but later claimed the amount was his hourly charge.

Actually, there is no prohibition against charging any hourly rate, no matter how high, as long as at least three factors co-exist: 1) The client receives value commensurate with the charge; 2) the client perceives that the value received was commensurate with the fee; and 3) there is sufficient communication between the lawyer and the client to confirm that the client understands what the charges will be, and the client is sophisticated enough to accept or reject the fee being proposed.

Also of note is that the disbarred lawyer's bizarre behavior led several other lawyers to comment regarding the ABA Journal report of the matter that such behavior could be the result of emotional, psychological or substance abuse problems.

Thus, said one commentator, "treatment would have been a much more appropriate response than severe punishment."

The implication is that abusive conduct may fall under the Rule 8.4 definition of moral turpitude: personal conduct that has "no specific connection to fitness for the practice of law."

From that it's just a short step to Florida's Board of Bar Examiners' announcement that it will examine applicants' Facebook and MySpace websites under certain circumstances, such as when the bar receives allegations of substance abuse. No permission is required to review such public material, whether for initial application to the bar or even license recertification.

From abusive behavior and fraud in client billing to a flippant reference about drug or alcohol use on a personal web page — all can come under the heading of moral turpitude. Is it so far from this to "temporarily borrowing" from client trust funds to pay a bill?

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