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Disclosing client secrets leads to disbarment

If a client tells her attorney about her son’s criminal behavior and the lawyer spills the beans to law enforcement, he can be disbarred. CHARLES J. ROTHBAUM [#54450], 59, of Henderson, Nevada, learned that lesson the hard way when he lost his license June 26, 2005, for, among other things, breaching a client’s confidence and compromising clients’ defenses.

The State Bar Court also found that Rothbaum committed misconduct in eight other matters, ranging from abandoning clients to committing acts of moral turpitude to practicing law while suspended for not paying bar dues. He owes more than $80,000 in attorneys fees to at least six former clients, including one who has been waiting for a refund of $22,448 for more than six years.

Rothbaum also failed to comply with a rule 955 requirement in a 2001 disciplinary order, a violation that by itself is grounds for disbarment. He had not refunded unearned fees to five clients, as required by the rule, and he submitted an affidavit to the Supreme Court that contained misrepresentations.

In one of the matters, a Tulare County woman was questioned by authorities who suspected her son and his wife were involved in two homicides. The woman then spoke with her son-in-law, a correctional officer, and told him what she knew. He advised her to speak to a lawyer, and then he told a detective what he knew.

The woman contacted Rothbaum, who had previously represented her son in two cases, and asked him to accompany her to the sheriff’s department, where she was to be questioned further. She hired Rothbaum, paid him $1,500 and told him what she knew about the murders. She expected Rothbaum to protect her rights while being questioned.

Prior to the interview, Rothbaum asked to speak to a detective, to whom he related everything his client had told him. During the conversation, he rejected the detective’s suggestion that he had a conflict by representing all three persons and that he was breaching the woman’s client privilege. After giving the information to the detective, Rothbaum said, “This conversation never happened, right?” Unbeknownst to him, it had been videotaped.

His client, her son and daughter-in-law subsequently were arrested and all three retained Rothbaum for a $50,000 fee. He had the three sign a “conflict waiver” without fully explaining the potential conflict to them. All three were unaware of his conversation with the detective.

The day after they signed the waivers, Rothbaum signed a stipulation with the State Bar admitting to misconduct in four matters, and agreeing to be suspended for 145 days and until he paid more than $22,000 in restitution to a former client. The suspension was not due to take effect for 30 days.

He informed the clients of his problems, but said the suspension would last only a couple of months and convinced them to appear in court without a lawyer while he was suspended. They agreed to do so.

At a hearing, the court appointed independent counsel for all three defendants because of their possible conflict, but all said they wanted to stick with Rothbaum. During their court appearance while Rothbaum was suspended, they learned about his revelations to the detective and fired him.

He did not refund the $50,000.

Rothbaum argued that he did not fail to maintain his client’s secrets because she had already given the same information to another person. He also argued that he was obligated to disclose the information he had because the woman’s son was likely to harm someone if apprehended by police.

The bar court rejected both arguments and said “the potential and actual harm [Rothbaum] caused to his clients . . . should not be understated. [His] indefensible misconduct . . . gravely jeopardized his clients’ criminal cases and compromised their defenses.”

In mitigation, Rothbaum said he was suffering from extreme financial, personal and emotional difficulties, including depression and a gambling problem. Although the bar court expressed sympathy for his problems, it gave little weight to them as mitigation.

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