The Fancy Pen Fallacy
"Don't judge a book by its cover." You've probably heard this advice. but I've spoken to more than a dozen people who are involved in book publishing and all of them say that books are in fact judged by their covers.
The right cover can make an enormous deifference in a book's sales. You've probably also noticed how important it is to dress for success, and researchers have found that how you dress at an interview can impact your starting salary. In many aspects of life we have no choice but to make decisions based on appearance. Buying a book based on its cover doesn't have a huge downside. At worst, you waste some money and end up with a lousy book.
But choosing a lawyer based on his or her appearance can be a much more serious mistake. For a sizable percentage of lawyers, the ability to write persuasively is an impoprtant skill. Likewise, an increasing percentage of negotiations take place over the phone. There are, of course, lawyers for whom appearance is a crucial element of how they serve their clients. Most notably, the small percentage of lawyers who handle jury trials fall into this category. Juries are often relatively unsophisticated and they are swayed by what your lawyer looks and sound like.
It is only natural to judge lawyers by their appearance. Seeing someone in an expensive-looking suit does suggest that the person wearing the suit is successful. But don't read too much into this. Remember, when your lawyer pulls out a fancy pen during your initial meeting, how the pen looks is much less important than how well the lawyer writes with that pen.
How To Do A Background Check On Your Arizona Lawyer
Arizona's attorney disciplinary system appears to be more transparent than the sytem used in many states. It is, for example, possible to obtain online judicial opinions that detail what specific lawyers have done to warrant being disciplined. But, as is explained below, if you are considering hiring an attorney in Arizona, it isn't easy to determine online whether your lawyer has ever been disciplined.
The Attorney Discipline Unit of the Arizona Supreme Court handles formal disciplinary charges against lawyers. The Court's website identifies lawyers who are currentlly facing disciplinary charges. For each of these attorneys, it possible to review the report submitted by the Hearing Officer who heard the evidence in the case against the lawyer as well as the decision of the Disciplinary Commission, which in effect acts as an appealate body and reviews the Hearing Officer's decision. Both the Hearing Officer's report and the Disiciplinary Commission's review are accessible online in pdf format. In addition, the Attorney Disiciplie Unit publishes a Matrix that identies all disiciplinary decisions made by the Arizona Supreme Court since 1986. The Matrix also identifies disbarments and suspensions, the most serious violations, between 1981 and 1985. Beginning in 2003, the Matrix includes a link to the actual decisions made by the Hearing Officer, the Disciplinary Commission, and ultimately by the Arizona Supreme Court. For cases decided between 1981 and 2002, only the summaries of these decisions are available online. It appears that if you want to receive the actual disiciplinary reports for cases decided before 2003, you need to call the Supreme Court and pay for copies of the disciplinary record to be mailed to you.
The authorities in Arizona ahould be commended for including the full-text versions of the disciplinary decisions. Too often, summaries of disiciplinary proceedings are written in such a dry style—and contain so little information—that it is difficult to get a full picture of what the lawyer did and why they received the punsihment they did. The disciplinary decisions often reveal what arguments were made in defense of the accused attorney as well as the judge's conclusion as to whether the accused lawyer acted defiantly or was contrite. These can be important details to know if you are considering hiring a lawyer who has previoulsy been disciplined.
Arizona's online reporting system does, however, suffer from a serious flaw; its search feature doesn't work very well. In theory, it should be possible to conduct an online search to determine whether a particular lawyer has previously been disciplined. But when I entered the names of specific lawyers into the search engine, the results were essentailly useless. The results linked to the Matrix for certain years but the names of the specific lawyers I searched for were nowhere to be found.
Thus, Arizona's online system is helpful when you want to find out information about a lawyer who you know has already been disciplined. It is particularly user friendly when you know the specific year in which the lawyer was disiciplined. But if you don't know this information and you want to find out whether a particular lawyer has been disciplined, the Supreme Court's website isn't very helpful.
In a future post, I'll report on what to expect when you call the Arizona Supreme Court to determine whether a particular lawyer has been disciiplined. But even if it is possible to find out this information by phone, the fact that this information isn't online means that far fewer clients will be able to make an informed decision about one of the more important decisons they make in their lives—which attorney to hire.
How To Find Out If Your Lawyer Has Been Sanctioned
I have previosuly written about how you can conduct a background search to determine whether your lawyer has been disciplined by either the Supreme Court or the Bar Association of the state or states in which the lawyer is licensed. If you are hiring a lawyer to represent you either as the plaintiff or defendant in a lawsuit, you should also find out whether the lawyer has been penalized by a court for filing a frivolous lawsuit or otherwise acting undreasonably in connection with the lawsuit.
The most well known court-ordered penalty or sanction is Rule 11 of the Federal Rules of Civil Procedure. It provides that, by signing a document filed with the court, the lawyer is pledging that the document is not being used for an proper purpose, is based on existing law or a good faith argument for a change in existing law, and is not frivolous. In addition, Rule 11 empowers federal courts to fine and otherwise punish lawyers who violate the Rule.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
Many states require lawyers who have been sanctioned more than a particular amount, often $1000, to notify the applicable disciplinary authority of the penalty. This requirement has had an unfortunate unintended consequence. Too many courts are hesitant to impose a sanction that will trigger the disclosure requirement. As a result, judges impose financial sanctions just below the disclosure limit. The lawyer's conduct therefore doesn't come to the attention of the disciplinary authority, and the amount of the fine is so low that it doesn't have much a deterent effect on the lawyer.
Many states have established court-ordered penalities that are comparable to those found in Rule 11. Most states also have passed laws that provide specific penalties and fines for lawyers who have been found to violate the rules relating to discovery—the process by which the parties to a lawsuit request and exchnage information from each other.
There isn't a sure fire way to determine whether your lawyer has been sanctioned by a court. Most lawyers don't handle lawsuits in federal court. Thus, Rule 11 doesn't directly apply. And even when a state has enacted a similar rule, it's often called something other than Rule 11. It can be worthwhile to enter your lawyers name in Google or some other search engine and see whether anything comes up when you look for discovery or litigation sanctions. Sometimes your best bet is to ask the lawyer during the interview whether they have ever been sanctioned and if so how much and for what.
An Epidemic of Attorney Depression
Lawyers With Depression is an important and courageous website. Its mission is to help lawyers with depression and was started by a lawyer with depression. Among other things, the site collects the volumnious research that shows that lawyers disporportionately suffer from depression. For reasons that are not widely understood and which are still being examined, lawyers seem to be more vulnerable to depression than a vast majority of people. Here is just one statistic from the site that makes clear just how prevalent depression is in the legal community.
A 1990 Johns Hopkins study looked at 104 occupations to see which professions suffered from the highest rates of depression. Lawyers topped the list (when adjusted for socioeconomic factors). and were found to suffer from clinical depression at a rate of almost four times that of the norm.
This fact creates a real and potentially heart-wrenching dilemma for clients. On one hand, lawyers are hired to help people resolve some of the most difficult issues in their lives. When you hire a lawyer you may be putting your life, liberty, and property in their hands. This is no place for an impaired person and the wisest cause of action as a client is to run away as fast as you can from a depressed lawyer.
On the other hand, depression is increasingly treatable and many lawyers manage to perform professionally even when they are depressed. Moreover, clients may be in a position to help their lawyers deal with some of the stress and pressure that comes with the job. The attorney-client relationship can be resilient; at its best it transcends the relationship between a typical service provider and a typical customer. This is no place for a bright-line rule that condemns every lawyer with depression.
Both of these points of view have merit. There are times when, as a client, it may not be prudent to work with a depressed attorney. There are also times, perhaps a majority of the time, when the lawyer's depression isn't imapcting the quality of their work on your behalf. I therefore suggest that you focus on the lawyer's conduct, not their status. If your attorney isn't returning phone calls and it turns out that depression is a cause of their their lack of responsiveness, you have a difficult decision to make about whether you need to find a different lawyer. But if you are generally pleased with your lawyer and you happen to find out they are dealing with depression, think twice about making a change.
There are no easy answers as to what a client should do when they find out that their lawyer is dealing with depression.
Twenty years ago I worked as human resources manager at a teaching hosiptal. One of the emergency room nurses had a cocaine problem. She completed a well-regarded drug treatment program and sought to be reinstated.
I agreed with the hospital's argument that it was just too risky to allow her to return to the operating room; they offered her another nursing position. The nurse's union filed a grievance.
I don't recall how the grievance was resolved, but that situation informs my analysis of how to deal with lawyers who are suffering from depression. If you are hiring a lawyer to do potenetially life-changing work—the equivalent of being in an emergency room—it's risky to give the lawyer the benefit of the doubt. Otherwise, I suggest that you monitor the lawyer's work closely and strongly consider continuing to work with them.
Some Non-Refundable Fees Are Refundable
A non-refundable fee should be a simple concept; it seems to be a fee that, once its paid, won't be returned. When it comes to attorneys who charge "non-refundable" fees, the reality is a bit more complicated. I have come across an increasing number of attorney-client agreements that describe certain fees paid by the client as "non-refundable." Often times, the lawyers themselves aren't aware that in several states the Rules of Professional Responsibility severely limit when non-refundable fees can be charged. In most states, a lawyer may charge a non-refundable fee if the lawyer is simply being hired to be available to do work. Sometimes this arrangement is called a "pure retainer." The client isn't asking the lawyer to work on a specific project, just to be available to do the work. This situation rarely takes place. A vast majority of the time, clients are hiring lawyers to do something specific.
The law in an increasing number of states provides that lawyers must return a "non-refundable fee" if they don't do any of the work they were hired to do. A 2005 article describing the law in Washington State exemplifies how lawyers can be disciplined for not returning non-refundable fees:
The [Washington State] Supreme Court, in an October 21, 2004, disciplinary decision, rejected the argument that a lawyer is entitled to keep a nonrefundable fee whether or not services are performed. The Court distinguished a "retainer" to secure a lawyer's availability over a period of time, as discussed in WSBA Formal Opinion 186, from a flat fee for legal services in a specific matter. Because the lawyer failed to provide the contracted services, his failure to return unearned money violated RPCs 1.5 and 1.15(d).
Different states treat non-refundable fees differently. But if you paid a non-refundable fee and the lawyer did no work or an unreasonably small amount of work relative to he size of the fee, not only may you be able to get your "non-refundable fee" back, your lawyer could be disciplined for failing to return that fee. That's why non-refundable fees aren't as straightforward as they first appear.
Avoid This Contingency Fee Trap
One word in your fee agreement with your lawyer can cost you thousands of dollars. The word comes up in the context of contingency fee arrangements. This is where the lawyer get paid on a commission basis—as a percentage of the amount you get. This is how most personal injury cases, such as automobile accident, medical malpractice, and slip and falls, are structured. In this or any kind of commission-based arrangement, you need to pay close attention to how the commission is calculated.
Most advertsing by lawyers who work on a commission basis emphasize that you don't pay them unless you get paid. What they don't emphasize is how their share is calcuated when your case is settled or when you win at trial.
This is where one word—gross—can cost you a bundle. Specifically, there is a huge difference between whether the lawyer receives a commission based on your gross receovery or your net recovery.
The following example illustrates the difference: you are injured in a car accident and sign an agreement with a lawyer that pays the lawyer one third of what you get. The lawyer spends $20,000 to handle your case. Most of that money is paid to expert witnesses such as doctors. If you settle this case for $150,000, how much will you cactually receive? Under most fee agreements, you will be responsible for reimbursing the lawyer for the amounts paid to expert witneses and for other costs, such as court filing fees. Here that amount is $20,000. If your contract says the lawyer gets a gross recovery, the lawyer will be entitled to a third of the $150,000 in addition to the costs. In this case, the lawyer would receive a total of $70,000 and you would get the remaining $80,000. But if the lawyer is contractually entitled to a net receovery, the lawyer will get paid a third of what's left over after the costs have been subtracted out. In this case that would be a third of $130,00 or $43,333. Thus, in this example, under a gross recovery the lawyer gets $70,000 and in a net recovery only $63,333.
The lesson should be clear—make sure that your fee agreement provides that the lawyer receives a percentage of what you get after costs are subtracted out. Go for the net recovery. When a lawyer earns a gross recovery in a contingency cases the result for the client can be gross.
How To Save Money When Hiring A Personal Injury Lawyer
For a personal injury attorney, death is a bummer. That's not because of the tragic loss of human life, a life cut short in its prime, or any of that sentimental stuff. It's because on average a dead client is worth less to the attorney than a severely injured but alive client. This is just one aspect of the topsy-turvy world of hiring a personal injury lawyer. There are a few truths you need to understand to get the best value for your money.
Truth # 1: The personal injury lawyer is the functional equivalent of a commission sales person. They work on a percentage basis.
Truth # 2: The value of your case to the lawyer is primarily dependent on the severity of your injuries. The more severe the injury the more valauable your case.
Truth # 3: A second important component of your value as a client is your earning capacity. The more you were making at the time of the injury and the higher your future potential earnings, the more your case is worth to the lawyer.
Truth # 4: A third important component of your value as a client is how sympathetic you might appear to a jury. A vast majority of personal injury cases settle before trial. You tend to get a higher settlement offer if the defendant is worried about how sympathetic you will look to a jury. This is why a seriosly injured live client is worth more financially than a dead one. The defendant can easily imagine how the jury will react to seeing a cute, wheelchair-bound little girl in the courtroom and will pay more money to avoid that from happening. The fact that the deceased can't be in the courtroom makes their case less valuable.
Truth # 5: From the lawyer's point of you, it doesn't take much more time and expertise to handle a more valauble case. For example, it doesn't take ten times as much work or expertise for a lawyer to work on a case that is worth $1 million compared to one that is worth $100,000. There is some additional work involved, but not as much as the difference in the value of the two cases.
These truths lead to a simple two-step process that will enable you to save money when you negotiate the commission (or contingency fee) that the lawyer will receive. First, estimate the value of your case. You know how much the injured person earns and the extent to which the injury intereferes with or reduces the ability to make money. You also have a sense of serious the injuries are and whether they require a short or extended amount of medical care. You also have a rough sense of how sympathetic the injured person is likley to appear before a jury. This is largely a function of how severely injured they are and what they were doing when they were injured. You don't need to calculate these figures exactly. You just need to get a rough sense of the general ballpark of the value of your case to a lawyer.
Second, and most importantly, the higher the potential value of your case, the more you should insist that the lawyer take a smaller percentage of the amount you receive in settlement or after a jury trial. Many lawyers will charge the same contigency fee regardless of the value of the case. Often that percentage ranges from 33% to 40% of the recovery. You can save many thousands of dollars by negotiating a lower commision rate. If your case is potentially worth $1,000,000, each percentage point of commission is worth $10,000. So don't be shy about negotiating a lower rate; if the lawyer suggests 40%, get them down to 33% or 35%. Remember, the value of your case is primarily depenmdent on the seriousness of the injuries. The more serious the injuries, the more likley it is that you will find a good and experienced lawyer who is willing to take your case and take a lower cut. This is because a single $1,000,000 case is much less work for the lawyer than four $250,000 cases.
There are some additional factors to consider when negotiating with a fee with a personal injury lawyer. One of these factors is how to handle the costs (such as court filing fees) that the lawyer may want you to pay. I'll address these issues in a future blog post, but for now remember that the key to saving money when negotiating with a personal injury lawyer is to focus on the their commission percentage. Do that and you can save tens of thousands of dollars.
What Elena Kagan Tells Us About Judicial Experience
President Obama this morning nominated Elena Kagan to replace Justice John Paul Stevens on the United States Supreme Court. The announcement was hardly a surprise, as Kagan, formerly the Dean of the Harvard Law School, was the odds-on favorite to receive the nomination. Equally predictable is one of the criticisms that will be leveled at Kagan—she would be the only member of the Court without prior judicial experience.
As a client, you are extremely unlikley to have your case heard by the Supreme Court. So you aren't likley to have Kagan resolve your specific dispute. But Kagan's nomination does reveal something important for clients to understand about what judges do. Kagan is likley to be sworn in as our next Supreme Court Justice. But she isn't qualified to serve as a trial court judge—the kind of judge that often generates the cases that the appeallate courts and the Supreme Court decide. Saying that Kagan isn't qualified to be a trial judge isn't a knock on her. My guess is that she would agree with that assessment. After all, she hasn't been in the courtroom. She hasn't represented clients during criminal or civil trials. Many of those who have been appointed either on the state or federal level as trial judges spent years in the courtroom, usually as a prosecutor in criminal trials. Kagan clearly lacks that experience. Moreover, many of the people who are trial judges lack experience in civil disputes; most of their trial experience came in the context of criminal cases.
This fact leads to an ironic situation. I have repeatedly advised that you hire lawyers who have the specific relevant experience that's need to help you reach your primary business or legal objective. If that objective includes prevailing in a civil lawsuit, such as dispute over a contract, that means hiring a lawyer who has a track record of successfully representing clients like you before the judge or judges who will decide your case. The chances are good, however, that the judge in that dispute handled few if any non-criminal cases beore they became a judge. Moreover, if your case were ever appealed, it would be heard by judges who may not have any experience working as a trial judge. Appeallate judges, including those on the Supreme Court level, are often nominated because of their knowledge of the law. Thus, the more pretigous a judge's position tends to be, the higher the chances that they haven't actually been in the courtroom either as a judge or as a trial lawyer. That is an important lesson for clients to understand when they are involved in a lawsuit.
The Legal Apprentice Returns
Thomas Jefferson was one; Abraham Lincoln too.
Both became lawyers by apprenticing with a practicing lawyer. The legal apprentice may be making a comeback, albeit with a modern debt-ridden twist. Jefferson and Lincoln lived before the establishment of law schools. For the past hundred years, a vast majority of American lawyers graduated from law schools and then immediately started to work. Famously, in recent decades, the graduates of select law schools commanded very high starting salaries right out of law school. For an increasing number of law school graduates, the six-figure starting salary is a pipe dream. It's being replaced by a new arrangement–working with a mentor for cheap as a way to get experience.
A recent article in the online edition of the American Bar Association Journal describes this trend without using the word apprentice. It appears that the ABA has finally concluded that it may not be a good idea for people to go to law school.
The chairman of an ABA commission studying the impact of the economic downturn on the legal profession has some advice for would-be law students: You may want to reconsider.
Allan Tanenbaum, chairman of the ABA Commission on the Impact of the Economic Crisis on the Profession and Legal Needs, spoke to the Wall Street Journal for a story on the dim employment prospects for this year's law grads.
Tanenbaum told the newspaper that the average law-school debt for students is $100,000, and in the current job market, many "have no foreseeable way to pay that back.”
The article elicited comments that are much more intersesting than the article itself. Two in particluar caught my eye. Both were written by lawyers who have hiring responsibilities. Both suggested that new lawyers find new arrangements.
As a managing partner at a small Central Texas firm I can say that I have seen 2 types of law students; those that make it happen and those that expect it to be done for them. We have 2 interns this summer. We have found a way to hire (at a low salary) one intern that made it happen. This kid has a real shot at a real job when he gets out. The other kind of asked for a favor and due we agreed. I have my doubts about the latter. The point here is that there are jobs out there and we are an example of where jobs are. These kids just have to quit looking for the big job and look for the better “arrangement”.
The second comment echoed the first, which was written by David Sergi.
I agree with David Sergi. I am managing member of a boutique IP firm that *I* started after less than 3 years of practicing in BigLaw. Law school is still a great education to have, but you can’t expect for a job to be given to you. You have to know what you want to do with that legal education and make it happen! Choose the best “arrangement”, not the most glamorous or high-paying job.
My advice to law students: BigLaw is dying, so stop looking for those opportunities… You need to connect with the legal community and find a mentor who is willing to teach/train you in the practice of law. THAT is how you make a legal career.
If you went to to law school to be “a baller”, well you’re going to be mighty disappointed.
Neither of these commentators uses the word apprentice, but that in essence is what they are describing. I have my doubts about whether apprentices will become a mainstay of legal practice. I continue to believe that the current generation of law school graduates will become a lost generation and that salaries for law school gards will recover as the economy improves. The difference between the haves and the have-nots will continue to grow, as an increasing percentage of law school graduates will never practice law.
What does this mean for clients? The best advice is still to avoid inexperienced lawyers. But also recognize that there is a pool of relatively talented people who are willing to work for cheap. It's now easier to hire a paralegal with a law degree. That's something to consider for very basic tasks.
Legal Education Stinks
The President of The State Bar of California, Howard B. Miller, didn't actually use the word "stinks." But that is a fair reading of his assessment of what attorneys know immediately after they graduate law school and pass the bar exam. Here are his exact words, as they appear in the May 2010 issue of the California Bar Journal:
For the foreseeable future the starter jobs that provided traditional training for those lawyers are not coming back (See Miller, Structural or Cyclical?, President’s Column, February 2010 California Bar Journal). Out of necessity, and without any practical experience, many unemployed lawyers are or will be setting up their own solo, usually community-based, practices. Those practices can be enormously satisfying, and when done well are needed by clients. Given the current state of legal education and what the bar exam tests, however, it is far from clear those lawyers are qualified to do so, and will not just be a risk to themselves but to their potential clients.
When a lawyer such as Mr. Miller writes that it's "far from clear" whether beginning lawyers are "qualified," that's as close as he likely to get to saying publicly that they are a risk to their clients. This is not the first time that I'm writing about a prominent member of the California legal establishment who is indicting the quality of law school education. What's refreshing about Mr. Miller's column is that he also speaks candidly about the value of the Bar Examination. He recognizes that the test is a deeply flawed measure of whether someone is qualified to practice law.
How many would want a surgeon to operate on them who had only been tested on a written exam, without seeing or operating on a patient, even in a simulation? The bar exam continues to exist as an accepted but flawed tradition, with only tangential problem solving connections to representing clients or any realistic certification of the ability to practice law. The coming changes in law practice, in its pricing models and client expectations for community-based solo practices, will require those of us who have been deeply involved in the current structure of the bar exam to think through what an effective qualification exam must be, which, in addition, can have an impact on necessary changes at the law schools as well.
To his credit, Mr. Miller addresses issues that are generally not discussed in public. His article mentions that more law students need to weigh the costs and benefits of going to law school. He even mentions that law school publish questionable statistics about how many of their graduates are employed following graduation, and suggests that this might be causing students to overestimate the financial rewards of becoming a lawyer. All of this is commendable and timely.
But there is a different approach to this problem—the Lawyer On A leash approach. It's terrific to see articles like the one written by Mr. Miller. But his term as President of the State Bar ends in a few months. There is a much more powerful and sustainable way to change the dynamic of the legal profession and law school education. And that that's to educate you the clients. It's going to take a lot longer to convince law school deans and the creators of the bar examination that they are involved in a deeply flawed enterprise. I have much more faith that, once more current and potetial clients know what lawyers say to each other about the quality of legal education, they will take appropriate steps to protect themselves. That's the Lawyer On A Leash approach.
Suspended Lawyer of the Month For May 2010
This month's award take us to the Land of Lincoln.
Illinois is not excatly known for imposing harsh discipline on its lawyers. More than 84,000 lawyers practice in Illinois. Approximately 4,000 or five percent are the subject of a disciplinary complaint in a given year. But in 2009 fewer than 150 lawyers were disciplined. So it isn't entirely surprisng that an Illinois lawyer is being recognized. Specifically, the Moron Lawyer of the Month for April 2010 is John O. Cutright of Cumberland County, Illinois. Here's how Mr. Curight's exploits were summarized in the 2009 Annual Report prepared by the Illinois Attorney Registration and Disciplinary Commission:
The Illinois Supreme Court issued a published opinion in one disciplinary case in 2009, In re John
O. Cutright, 233 Ill.2d 474, 910 N.E.2d 581, 331 Ill.Dec. 172 (Ill. June 4, 2009). Mr. Cutright, of
Cumberland County, engaged in three separate acts of misconduct. First, he agreed to represent a woman
who was serving as the executor of the estate of her late husband. The estate included an interest in a
company named Triple C Thorostock. Later, an 86-year-old client came to the lawyer’s office and told
him that she wanted to forgive a $312,900 debt owed to her by Triple C Thorostock. Mr. Cutright
prepared a will and another document that served to forgive the debt. The client signed the documents.
The lawyer never asked the client about her financial situation before drafting the documents. At the time
of the drafting, the client was in the early stages of Alzheimer’s disease. Although Mr. Cutright claimed
that she was of sound mind, a probate court later determined that she lacked testamentary capacity.
Second, the lawyer reviewed and signed, as paid preparer, certain income tax returns for companies in
which now-disbarred Cumberland County Judge Robert Cochonour had an interest. Mr. Cutright, or
persons in his office, also reviewed several tax returns for a probate estate in which the judge was acting
as executor, along with the judge’s individual tax returns for certain years. Mr. Cutright never billed the
judge for these tax services. During this time period, however, he routinely appeared before the judge, not
disclosing to opposing counsel that he was, without remuneration, reviewing tax returns in which the
judge had an interest. Finally, as alleged in the last count, Mr. Cutright represented an executor of a
decedent’s estate. Litigation of a partition issue was necessary. The litigation resulted in the estate
receiving $14,095.50. A dispute later arose between the heirs. After the dispute arose, Mr. Cutright took
no action on the estate for an 11-year period and failed to close the estate in a timely manner. The Hearing
Board recommended that he be suspended for 120 days. The Review Board later recommended a six month
suspension. The Court, however, increased the recommended period of discipline. Mr. Cutright,
who was licensed to practice in 1967, was suspended for two years.
This case reflects an all too common aspect of human nature; it's hard to punish your own. It is at least gratifying to see that, as this case wounds its way through the discipline process, the length of the discipline increased dramatically. There is a huge difference between a 120-day suspension, the initial recommendation, and a two-year suspension, which is what the Illinois Supreme Court imposed. The former punishment generally allows a lawyer to continue practicing. But a two-year suspension, especially for a lawyer who has been practcing since 1967, is much more likely to be career ending. I have no opinion on what Mr. Cutright will or ought to do when his suspension ends. Nor do I derive any pleasure from highlighting the shorcomings of someone who has been working as a lawyer roughly as long as I've been alive. It is somehwat encourgaing, however, that the Illinois Supreme Court meted out a severe penalty.
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