American Jurisprudence on pro bono work

7/26/2019 American Jurisprudence on pro bono work

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American jurisprudence

In Red are my observations.

In Re of Fischer, 89 P.3d 81 !"o#o. $%%&'

(ummary) Pro bono *or+, a#onside other mitiatin circumstances,

mitiated the sanction imposed.

Respondent -ar+ oseph Fischer refused to pay his c#ient/s former husband.

0e admitted durin the attorney discip#inary proceedins to have disbursed funds to

his disso#utionofmarriae c#ient and to himse#f in the amount of his attorney/s fees,

in a manner not in accordance *ith the terms of the separation areement adopted

by the court. 0is justi2cation for refusin to pay his c#ient/s former husband *as

that his c#ient had directed him as her attorney to *ithho#d payment from her

former husband because of certain issues she had encountered in the disposa# of

certain conjua# properties.

he 0earin 4oard ordered that he be disbarred since disbarment *as the

presumed sanction for the misappropriation cases, such as Fischer/s case, aside

from vio#atin the court/s order !i.e., separation areement adopted by the court'.

Respondent Fischer appea#ed from the 0earin 4oard/s order disbarrin him.

Respondent arued that the 0earin 4oard did not appropriate#y consider mitiatin

circumstances such as his cooperation durin the discip#inary proceedins,


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reputation in the community, pro bono activities and service, and his practice in an

area of the (tate *here fe* attorneys are avai#ab#e.

he (upreme "ourt of "o#orado areed *ith Respondent Fischer. he "ourt

he#d that the sanction imposed by the 4oard *as manifest#y e5cessive and

unreasonab#e for it fai#ed to consider and ba#ance the aravatin and mitiatin

circumstances. After discussin the most re#evant mitiatin circumstances, the

"ourt reiterated the ratio in decided cases that an attorney/s pro bono *or+ is a

mitiatin factor. 0ence from disbarment, the "ourt reversed the 4oard/s decision

and instead imposed suspension for one year and one day.

0o*ever, the e5tent of pro bono *or+ as reards mitiatin a pena#ty cannot

be fu##y described due to the presence of other factors 6 factors *hich are

pre#iminari#y discussed by the "ourt before discussin the pro bono *or+ rendered

by the respondent.

In Re 7iscip#inary Action aainst Py#es, &$1 ..$d 3$1 !-inn. 1988'

(ummary) 7ue to the pro bono *or+ *hich strained his persona# and fami#y

2nances, respondent Py#es misappropriated his c#ients/ funds. 0e justi2ed

this ho*ever by *hat he considered a supersedin mora# ethic to aid the

underdo. he "ourt too+ notice of this and hence ordered that respondent

Py#es be inde2nite#y suspended from the enera# practice of #a* or any

#imited practice of #a* that invo#ved rendition of #ea# services or advice to


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c#ients for a fee or other*ise, instead of upho#din the referee/s

recommendation of disbarment.

his case stemmed out of the various vio#ations of ru#es of professiona# conduct

app#icab#e to #a*yers committed by respondent 7avid A. Py#es. he action *as

instituted by the 7irector of the :a*yers Professiona# Responsibi#ity and *as

referred by the court to a referee. he vio#ations inc#uded) misappropriations as

reards c#ient and escro*ed funds; misrepresentations to concea# those

misappropriations; fai#ure to +eep aden appea#, the (upreme "ourt of -innesota ho*ever imposed inde2nite suspension

ho*ever due to the specia# circumstances of the case. -ore so, the reversa# *as

amp#y supported by the referee/s 2ndins.

It *as found by the referee that outside the #ea# profession, respondent Py#es #ed

an e5emp#ary #ife. 0is entire nonprofessiona# #ife had demonstrated his care and

concern for the #ess privi#eed. In addition to enera##y attendin to the needs of

the underprivi#eed, it *as found that respondent often rendered professiona#


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services for *hich he received no fees or fees considerab#y sma## than those

appropriate for the services rendered, *hich in turn had a detrimenta# e?ect on his

o*n persona# and fami#y 2nances. hen that happened, he bean to

misappropriate c#ient funds. From the dianosis of the psycho#oist *ho e5amined

respondent, Py#es had rationa#i@ed the behavior constitutin the misconduct as

bein justi2ab#e because of *hat he considered as a supersedin mora# ethic *hich

*as to aid the underdo. 0is actions, as furthered by the "ourt, *ere not motivated

by avarice nor for persona#, socia# or 2nancia# arandi@ement.

0o*ever, the primary justi2cation by the "ourt *as that respondent Py#es *as no

#oner enaed in the enera# practice of #a*. 0e rather rendered services *hich

did not invo#ve the rendition of #ea# services or the ivin of #ea# advice to c#ients

on a fee basis nor the hand#in of c#ients/ money. hese services, accordin to the

"ourt, did not pose any threat to the pub#ic.

In Re 7iscip#inary Action aainst :ocho*, &9 ..$d 91 !-inn. 1991'

Respondent -ichae# :ocho* *as chared of misappropriatin his c#ients/ money, of

misrepresentation, and of ne#ect to his c#ients/ cause. he referee *ho heard his

discip#inary proceedin recommended that respondent :ocho* be suspended for 18

months. Respondent :ocho* appea#ed from this order c#aimin that the sanction

*as not appropriate.

he (upreme "ourt of -innesota #essened the period of suspension to months.

he "ourt opined that the 18month suspension *as too severe for cases invo#vin


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misrepresentations and deceptive statements made to the court. In its discussion,

the "ourt noted the pro bono service respondent :ocho* rendered durin his #a*

practice as found by the referee. -oreover, as noted by the referee, respondent

:ocho* *as invo#ved in community activities, inc#udin vo#unteer *or+ for the

home#ess and the e#der#y.

0o*ever, the primary justi2cation by the "ourt *as that the a##eation of

misappropriation *as unfounded. his 2ndin *as supported by the referee *ho

heard the discip#inary proceedin. -oreover, it *as of the "ourt/s opinion that the

pena#ty of suspension for months *as too severe for misrepresentation and

deception cases.

BBBIn Re) "hin . Fon, $ .C.(.$d 3 !.C. App.7iv.$%%3'

he 7epartmenta# 7iscip#inary "ommittee ordered, based on the report of the

Referee *ho presided over the discip#inary proceedin, that respondent "hin .

Fon be suspended from the practice of #a* for no #ess than 18 months due to the

seven vio#ations respondent committed. hese vio#ations inc#uded

misappropriation, *ritin chec+s payab#e, fai#ure to maintain appropriate escro*

records, ne#ectin a #ea# matter, prejudicin a c#ient, and enain in conduct

adverse#y re=ectin on his 2tness as a #a*yer.

"ontrary to the Referee/s 2ndins ho*ever, the 0earin Pane# rejected the former/s

conc#usion. It opined that respondent did not enae in a pattern of misconduct but


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had made one Dmista+eE instead. 0ence, it recommended that the appropriate

pena#ty, considerin the bu#+ of mitiatin circumstances, *as pub#ic censure.

he Appe##ate 7ivision of the (upreme "ourt of e* Cor+ ho*ever armed the

referee/s 2ndins. It found respondent/s misconduct *as serious. -ore so,

respondent/s numerous acts of misconduct *ith respect to the account he *as

hand#in *ere not a#one. 0ence, suspension *as the proper sanction.

0o*ever, due to the considerab#e evidence in mitiation, inc#udin respondent/s

reu#ar pro bono *or+ on beha#f of four community orani@ations, the number of

months *as reduced to 3.

his case i##ustrated ho* pro bono *or+ mitiated the sanction to be meted out.

In Re 0aer, 81$ A.$d 9%& !7.". $%%$'

Respondent -ar+ 0aer/s professiona# services *ere enaed to pursue #ea# action

aainst arner:ambert "o. *ith respect to its head#ice shampoo i5 because the

product *as ine?ective in eradicatin head #ice as a i5resistant strain of #ice had

evo#ved. 0is c#ients e5ecuted a continent fee areement, *ith his cocounse#

ra2conte. It *as for the purpose of investiatin potentia# bases for a c#ass action

suit aainst the arner:ambert "o.

arner:ambert "o. ho*ever contacted ra2conte to bein sett#ement, *ith

respondent 0aer a*are of and invo#ved in the neotiations. At 2rst, he informed


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his c#ients that neotiations *ith arner:ambert "o. had beun but he did not

disc#ose any terms.

ithout informin his c#ients, respondent 0aer, ra2conte and arner:ambert

entered into a sett#ement areement. Respondent 0aer/s c#ients *ere paid due to

the sett#ement areement.

>ne of respondent/s c#ients ho*ever as+ed *hether they !0aer and ra2conte'

*ere paid by arner:ambert to abandon their representation. hey refused to

rep#y ho*ever. his prompted the c#ient to 2#e a comp#aint *ith the 4ar "ounse#

concernin 0aer on#y. 0e *as found to have vio#ated 8 ru#es and it *as

recommended that he be suspended from practice for 1 year.

Respondent contends ho*ever that the 4ar "ounse# fai#ed to prove by c#ear and

convincin evidence that he vio#ated any Ru#es of Professiona# "onduct.

he "ourt of Appea#s of the 7istrict of "o#umbia found respondent 0aer to have

vio#ated the ru#es. 0is vio#ations inc#uded con=icts of interests, dishonesty,

improper conduct durin sett#ement neotiations, and fai#ure to protect a c#ient/s

interests once the representation has ended. 4ein a con=ict of interest case, the

sanction to be meted out *as from informa# admonitions to #enthy suspensions.

In determinin the appropriate sanction aainst respondent 0aer ho*ever, the

"ourt considered some mitiatin circumstances such as his e5tensive record of pro

bono service. 0ence, the 4oard/s recommendation of 1 year suspension *as

uphe#d. 0o*ever, his reinstatement, un#i+e in other cases *here a number of years

had to e#apse, *as conditioned on certain comp#iance.


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here *ere other circumstances enumerated by the "ourt. hese inc#uded

respondent not havin been previous#y subject to discip#inary proceedins and his

ood character in enera# as testi2ed by three *itnesses. 0o*ever, from the facts,

it seemed the pro bono *or+, a#onside other mitiatin circumstances, did not do

much. In fact, un#i+e the 4oard *hich did not impose further reinstatement

conditions, the "ourt imposed conditions before 0aer may be reinstated.

In Re 7iscip#inary Action aainst 7vora+, GG& ..$d 399 !-inn. 199'

he case stemmed out of respondent (hir#ey 7vora+/s act of 2#in a fa#se ta5 return.

(he even admitted to the commission of the same by enterin a p#ea of ui#ty in a

federa# court in orth 7a+ota. (ubsether

mitiatin factors inc#uded *ere that 7vora+ *as not previous#y subject to discip#ine

in her 1G years of practice, her substantia# persona# prob#em brouht about by the


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i##ness and death of her father, her fu## cooperation in the discip#inary investiation,

and her outstandin reputation for honesty and hard *or+ *ithin the profession.

-oreover, the "ourt be#ieved that the vio#ations in

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American Jurisprudence on pro bono work