In addition, the bars ethics committee, after
exhaustive study, found no evidence the bar prosecutes such offenses where there is no
harm, and said existing standards should be preserved since there appears to be a
direct correlation between misappropriation and poor record keeping.
The board discipline committee, however, acknowledged the concerns of
some lawyers, particularly sole practitioners or those working in a small firm, who might
be subject to discipline for an inadvertent or technical violation of the trust accounting
regulations. In addition, they said there is a perception among lawyers that the
discipline system is unfairly skewed against that group of practitioners.
Former bar president Andrew Guilford said the potential for trust
account-related discipline is biggest complaint he faced in visits during the past year to
bar associations around the state. New president Palmer Madden added that lawyers are
worried that theyre going to get disciplined if they screw up their trust
accounts in a way that doesnt hurt any client.
In addition, the bars Conference of Delegates passed two
resolutions in 1998 providing that failure to adhere to . . . technical record
keeping requirements, in the absence of financial loss incurred by a party to whom a
lawyer owed a duty, shall not be grounds for the imposition of discipline.
Madden suggested a possible compromise, offering both prevention and
education, would be a diversion program to the bars existing trust account
record-keeping class. Those who refuse to attend could be subject to discipline.
Several board members agreed, including Valerie Miller, who said the
existing rule causes problems. We ought to be realistic about what it is were
trying to accomplish. The diversion suggestion, she added, is an appropriate
way to deal with impropriety.
Acting discipline chief Fran Bassios said every year the bar receives
from banks about 4,000 insufficient funds notices telling us attorneys checks
have been bounced or paid against insufficient funds.
If prosecutors find the violation is not serious, the offending
attorney may be required to attend the bars record-keeping class. On the other hand,
what appears to be a technical or inadvertent violation may be just the tip of the
iceberg, Bassios said, and further investigation may uncover commingling or
misappropriation of client funds. You dont want to give them a pass on a
technical violation when theyre on the way down a slippery slope to
misappropriation, he said.
Bassios said criticism of bar procedures in the cases in question is
based on a lack of information.
Scott Drexel, chief counsel for the State Bar Court, also opposes any
change, pointing out that the Rules of Professional Conduct set high standards which all
attorneys should meet. If an attorney conforms to the rules, theres no
problem, Drexel said. If you blur those lines, theres a danger of other
Maintaining high standards goes a long way to preserving attorney
integrity, particularly when other peoples money is involved, he added.
Any change in the Rules of Professional Conduct would have to be
approved by the full board of governors and adopted by the state Supreme Court before