Friday, the Court of Appeals of Maryland issued its opinion in an attorney discipline case. The Court reaffirmed what we all know, which is that commingling personal and client assets in an attorney trust account are likely to get you disbarred. So for my lawyer readers, don’t do that.
The facts are interesting though. It seems that the lawyer was accused of sexually molesting one of his young daughter’s playmates. The opinion doesn’t say so, but it looks like the lawyer was not convicted criminally. So he does something that only a truly innocent or really stupid person would do- he sues the purported victim’s parents for defaming him. In turn, they do something that a really smart person (or a person getting excellent legal advice from Andrew D.
Freeman, Esq.) would do- they counterclaimed for battery on behalf of their daughter. The Baltimore County civil jury agreed with the parents, granting judgment against the lawyer in the amount of $386,350 in compensatory damages and $75,000 in punitive damages.
The disbarment proceeding centered upon the lawyer’s financial misconduct in trying to conceal assets from the parents’ efforts to collect the judgment. Nothing was really said by the Court of Appeals about the jury’s finding of liability for improperly touching the girl. The opinion gave me the impression that if the lawyer had simply paid the judgment, he would still be practicing.
I wonder if this is because of the standard of proof? In Maryland, attorney misconduct must be proven by clear and convincing evidence. However, for the civil judgment the parents obtained, the standard of proof is a preponderance of the evidence. So the only way that the abuse could have been before the Court of Appeals would be if there had been a “trial within a trial” to allow the court to rule upon the abuse allegations under a “clear and convincing” standard. To be clear, this is my own analysis; it’s not in the opinion.
I bet the Court was glad to have an iron-clad reason to disbar without having to wade into the abuse allegations. I think you can see the court didn’t want to go there since the only mention is about one line explaining where the judgment against the lawyer came from.