SCOV Law Blog: The late shift

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Editor’s note: This analysis of a recent Vermont Supreme Court ruling is by Daniel Richardson, the founder of SCOV Law Blog.

In re Richard A. Scholes, Esq., 2012 VT 56 (mem.).

As attorneys, there are several levels of discipline that we face for our mistakes. The most severe — disbarment — is normally reserved for financial crimes (taking client’s money) or similar dishonesty that directly violates a client’s interest or trust. In other words, there are some actions that if caught will render you unfit for the practice of law — forever.

On the other end is an anonymous reprimand. In such cases, the lawyer’s name is not given to the public, but he or she knows that they crossed a line. Such reprimands are often for minor violations — failure to follow up on an issue in a timely manner, accidental overdrafts, unnecessary delays where no harm follows to the client but the level of professionalism is lacking. In such cases nothing happens to the attorney’s ability to practice, but she is put on notice that she should be more careful and conscientious in the future.

Defendant was a bankruptcy attorney with a long-established practice. In three cases, however, he was slow in filing a client’s bankruptcy forms despite receiving payment for the work. As the Professional Responsibility Board found, it took defendant in the separate cases 20, 32 and 25 months between receiving payment and completing his client’s basic bankruptcy filings.

Slightly above the private reprimand is the public one. Here, the attorney’s name is published and broadcast publicly as being subject to a reprimand. The attorney’s actions are severe enough to warrant public notice and to serve as an example to others.

Today’s case falls in the latter category. Defendant was a bankruptcy attorney with a long-established practice. In three cases, however, he was slow in filing a client’s bankruptcy forms despite receiving payment for the work. As the Professional Responsibility Board found, it took defendant in the separate cases 20, 32 and 25 months between receiving payment and completing his client’s basic bankruptcy filings.

An attorney has a professional obligation to act with reasonable diligence and promptness in representing a client. In each case, too much time elapsed between taking the fee and doing the work.

Although the clients suffered no actual harm and each client eventually obtained what he or she sought (a bankruptcy discharge), defendant still failed his professional obligations. In essence, defendant took too long to be professionally acceptable.

It is important to note that attorneys are a self-policing profession. Lawyers review the actions of other lawyers. This is unique from nearly every other occupation. We have this system because of cases like this. Despite the lack of actual harm, the Professional Responsibility Board recognizes that justice delayed is a form of justice denied and that a late filed case causes stress and anxiety for the client.

The case does not appear to have been vigorously contested or even appealed to the SCOV, but in a prefatory note, the SCOV states that it ordered this case published to warn small firm and solo practitioners to be aware of their obligations.

Let Spartacus and his followers line the Appian Way as a warning to others.

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