To Err is Human—or Is It Moral Turpitude?
LACBA Update, March 2009
By Ellen A. Pansky, member, LACBA Professional Responsibility and Ethics Committee. Pansky, of Pansky Markle Ham LLP, specializes in the defense of attorneys, bar applicants, and other professionals in regulatory and licensure proceedings, and represents both plaintiffs and defendants in civil actions. She consults with and advises lawyers in legal ethics and risk management, and frequently serves as an expert witness in legal malpractice proceedings. The opinions expressed are her own. email@example.com
Just as do all other human beings, lawyers sometimes make mistakes. Such mistakes may result from misunderstanding or misinterpreting gray areas of law. Sometimes, mistakes take the form of simple negligence, e.g., hitting the Reply to All button when sending a sensitive e-mail meant for the client alone. Sometimes, despite having appropriate systems in place, a lawyer or the lawyer’s staff fails to calendar an important date such as the statute of limitations.
Often, a client file will be misplaced, and the lawyer will delay completing the services for which he or she was retained. At some point, the attorney’s error in misplacing the file will result in an undue delay in the client’s matter, which could lead a State Bar disciplinary prosecutor to conclude that the lawyer engaged in a willful failure to perform in violation of Rule 3-110 of the California Rules of Professional Conduct. Even a single case of failure to perform has been known to result in the filing of a disciplinary charge.
Perhaps the most serious errors relate to the maintenance and management of the client trust account. An error in client trust account management may include failing to deposit client funds in an account that is designated and dedicated as a depository exclusively used for client funds, or mistakenly depositing the lawyer’s own funds into the trust account. Where trust funds are deposited into the lawyer’s business operating account, or where the lawyer deposits personal funds into the trust account, an improper commingling of personal funds and client funds may result, constituting a violation of Rule 4-100(A) of the Rules of Professional Conduct. In fact, failing to keep particular types of bookkeeping records relating to the trust account may constitute a violation of Rule 4-100(C). Thus, an extended failure to comply with recordkeeping and accounting requirements could result in the imposition of discipline even in the absence of client harm.
It is well established that simple negligence will not form the basis of a State Bar disciplinary finding. For example, more than 50 years ago, the California Supreme Court ruled that “simple neglect would not be sufficient for a statutory violation.” (Call v. State Bar, 45 Cal. 2d 104, 109 (1955).) This concept has been repeated on numerous occasions over the decades. Both the supreme court and the California State Bar Court have repeatedly reiterated that only gross, habitual, or pervasive negligence will establish a basis for discipline. (See Innis v. State Bar, 20 Cal. 3d 552, 556 (1978); and In the Matter of Torres, Cal. State Bar Ct. Rptr 138 (Rev. Dept. 2004).)
Another area of concern to the State Bar is failure to comply with a court order. If an attorney flouts a court order, that would be considered an improper act that may constitute moral turpitude. In Maltaman v. State Bar, 43 Cal. 3d 924, 951 (1987), the supreme court noted that “under certain circumstances, an attorney’s disobedience [of court orders], even when he [or she] acts in a nonprofessional or personal capacity...constitutes ‘moral turpitude’ within the meaning of section 6106.” Of course, distinction must be made between a negligent failure to comply with a court order and the type of extreme disregard for the legal system that is necessary for a finding of unfitness to practice and moral turpitude.
If an attorney is found to have habitually disregarded a client’s interests by either recklessly or repeatedly failing to provide competent legal services, the attorney may be found to have committed gross negligence. In turn, gross negligence has often been the basis for a finding of willful violation of Business and Professions Code Section 6106, moral turpitude.
The State Bar Review Department held in In the Matter of Moriarty, 4 Cal. State Bar Ct. Rptr. 9 (Review Dept. 1999): “gross negligence is a well-established basis for finding an act of moral turpitude.” However, it would be incorrect to conclude that every act of gross negligence necessarily compels a conclusion that an attorney engaged in an act of moral turpitude. If a lawyer creates a false impression or makes a misrepresentation through factual statements that the lawyer knows to be untrue, as contrasted with careless misstatements, such conduct may in certain circumstances constitute a violation of Business and Professions Code Section 6106. (In the Matter of Maloney and Versik, 4 Cal. State Bar Ct. Rptr. 774, 786 (Review Dept. 2005).) On the other hand, a lawyer’s good faith acts predicated on a mistake of fact do not constitute moral turpitude. For example, where a successor attorney settled cases on which a predecessor counsel had worked, then made repeated efforts to obtain the consent of predecessor counsel to endorse the settlement drafts, and ultimately put the predecessor counsel on notice that the drafts would be endorsed and deposited into the client trust account so that the clients could receive the undistributed portion of the settlement proceeds, the State Bar Court Review Department refused to find that the successor attorney had engaged in an act of moral turpitude. (In the Matter of Respondent H, 2 Cal. State Bar Ct. Rptr. 234 (Review Dept. 1992). Also see In the Matter of Lazarus, 1 Cal. State Bar Ct. Rptr. 387, 397-398 (Review Dept. 1991), in which no moral turpitude was found where the attorney simulated the client’s signature to deposit a settlement draft after the client had provided authority under the retainer agreement to permit the lawyer to endorse the client’s name.)
Many lawyers find it hard to believe that negligent failure to provide legal services can rise to the level of a disciplinary offense, let alone that repeated failure to perform may be sufficient to constitute an act of moral turpitude. However, the State Bar of California regularly charges lawyers with alleged violations of Business and Professions Code Section 6106, based on negligent acts such as failure to comply with the trust account rules, and repeatedly failing to provide legal services with competence.
It is a mistake to assume that the State Bar will decline to investigate a lawyer’s extended period of gross inattention to client matters notwithstanding a lawyer’s lengthy history of blemish-free practice.
It is well recognized that members of the legal profession experience substance abuse problems and depressive illness at a rate higher than most other professions. Left untreated, substance abuse and depression often lead to inattention to an attorney’s professional obligations. Most unfortunately, lawyers often find themselves the subject of disciplinary proceedings stemming from burnout, midlife crisis, or more serious disorders. It is crucially important to recognize these issues in ourselves and in our colleagues rather than allowing professional inactivity or inaction to snowball into a serious disciplinary offense or, worse, a life-threatening situation.
As lawyers, we should heighten our awareness and take appropriate steps to address instances of inattention to client matters. To this end, the State Bar’s confidential Lawyer Assistance Program provides counseling and a supportive program for the recovery from chemical dependency and/or mental health disorders. Find out more about the Lawyer Assistance Program here.