Saturday, December 03, 2016

Technologically Illiterate Lawyer Allowed To Voluntarily Surrender License In Lieu Of Boot For Failing To Supervise Office Manager/Wife, Leading To Over $300K In Misappropriated Client Trust Account Funds

From The Law for Lawyers Today blog:
  • Technophobia isn’t confined to U.S. lawyers. No surprise, it affects Canadian members of the bar, too, with the same potentially disastrous results. A cautionary tale: a lawyer who was technologically illiterate failed to supervise his wife, who ran his office and used his bar credentials to misappropriate more than $300,000 without his knowledge. Canadian disciplinary authorities last month permitted him to surrender his license voluntarily, instead of revoking it.(1)

    “Complete care and control”

    First reported under the apt headline “Dinosaur in the Dark” over at Legal Profession Blog, the opinion describes how from 1996-2013 the lawyer totally abdicated administrative responsibility for his corporate and real estate practice to his non-lawyer wife, who served as his “law clerk.”
    ***
    The lawyer continued to be ignorant of all things technological — he did not even use a cell phone. He remained unaware of Ontario’s mandatory Teranet system, the electronic registration facility implemented in the late 1990’s, in which client financial transfers and charges are required to be registered electronically using a computer key unique to the lawyer to whom it is issued. The wife obtained the key on the lawyer’s behalf and used it without his knowledge, authorization or supervision.

    Recipe for disaster

    You can see where this sad story is headed. When the income from the law practice failed to meet the couple’s modest expenses, the wife started robbing Peter to pay Paul out of the client trust accounts. She testified “I always thought it would be a temporary thing. I always thought things would get better and we’d … have more work or come into money, or something and I’d pay it all back.”

    The wife’s delusional scheme continued based on the lawyer’s ignorance; he never saw e-mails that came from the bank or, eventually, from disciplinary authorities, and his wife intercepted postal mail and even phone calls that would have alerted him to the problems. She admitted that she kept the lawyer totally in the dark about her increasingly desperate misappropriations. Eventually, $373,000 in client funds had been misappropriated and more than $530,000 had been “misapplied.”

    Keeping your eye on the ball

    The house of cards finally fell after disciplinary authorities carried out a random “spot audit” of the firm. (The 30-year marriage apparently ended, too.) The lawyer was allowed to surrender his license by agreement, rather than having it revoked, partly because of his remorse, admitted misconduct and the wife’s admitted deception.

    The lawyer’s counsel described him as a “dinosaur,” and the disciplinary opinion said he “refused or could not be bothered to become computer-literate, during a time when the practice of law and business in general was evolving rapidly and becoming much more dependent on electronic media and devices.”

    Here in the States, of course, Model Rule 1.1 cmt. [8] says that the duty of competence means that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Here, the lawyer was found to lack “the technological knowledge necessary to conduct a successful legal practice in the twenty-first century.”

    Although the lawyer had every reason to trust his wife, being so ignorant that he could not “actively review and supervise” her actions was misconduct, as it would also likely have been under our Model Rule 5.3.

    These circumstances make for sad reading, to be sure, but as we’ve pointed out a couple times before, you have to keep up with the times.(2)

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