Sad irony: State Bar victimized by (alleged) staff embezzler

We've all heard countless times about a solo practitioner facing disciplinary consequences because the lawyer's admin embezzled funds.  Here's news that the State Bar of California may have suffered a similar fate at the hands of a staffer.  The investigator's declaration is here.

Comments

[Alan Childress]

John,
Mike linked to this at LPB and we are asking each other whether there is the same duty to supervise in Calif. as under the MR, and hope you or David will weigh in (here or there) about the way it works in Calif. (though obviously not so much for this bar situation).

http://lawprofessors.typepad.com/legal_profession/2009/04/courtesy-of-legal-ethics-forum-here-is-a-link-to-a-statement-describing-the-basis-for-criminal-charges-against-a-former-empl.html

[john steele]

I've commented there. The duty to supervise is part of the rule on competence (3-110(A)). Shoddy or clearly inadequate supervision, especially regarding other people's money, can support a finding of willfulness sufficient to justify discipline. I haven't done respondents work, but the length and severity of this embezzlement would presumably support discipline for any supervising lawyer -- with one huge caveat.

It seems doubtful to me that this is the practice of law by anyone. The State Bar is a commercial landlord and it was lessees funds that were swiped. There was no client; no practice of law; etc. So I don't know why the discipline rules would kick in.

Again, if it did involve the private practice of law, my sense is that there would be discipline.

[Stephen R. Diamond]

You miss two features of California law. First, the State Bar is charged with prosecuting internal wrongdoing, not just ethics violations in the practice of law. Second, any staff misappropriation is attributed to the supervising attorney and termed willful, increasing the harshness of the penalty compared to the Model Rules.

For detail and more on California Bar Law, see my blog. Click the link for specific analysis of the significance here of the State Bar's failure.