A question was recently posed: What is the biggest mistake a lawyer can make?
Well, a lawyer can make many mistakes. But perhaps the one that will get a lawyer disbarred the fastest is wrongfully appropriating money that you have access to, but is not yours.
This is a typical function and role of lawyers, fiduciaries in possession and control of funds, sometimes vast sums of money, that is not theirs.
In fact, we are required to keep a “trust account,” a special bank account that holds funds that are not our property but that we have complete access to and control of.
This can arise in the context of being an escrow agent in real estate transactions, holding funds from a trust or decedent’s estate, holding advance deposits on fees to be earned in the future, or holding the proceeds of a litigation settlement or recovery for the benefit of a client, just to name a few.
And every year, there are lawyers who cannot resist the temptation to dip into funds that are not theirs to be dipping into.
Many do so thinking of it as a secret loan that they will repay. Some succumb to addiction, to gambling, chemicals or simply a lifestyle that their legitimate income cannot continue to support.
A number of the perpetrators of this misappropriation, when the house of cards finally comes tumbling down, causes the legal community to gasp in disbelief because it has happened that some are among the most admired and respected members of my chosen profession.
But they were not above a mistake of character that cost them their profession, their dignity, and their life as they once knew it.
That’s a big mistake.
Another huge mistake a lawyer can make, in my opinion, is to lose credibility with the court.
I’m happy to say that by and large, the vast majority of my professional colleagues understand the importance of credibility, and use scrupulous care in what comes out of their mouths. Still, such is not universal.
For example, a few years ago, I had a trial before a judge in a rural county.
In breezed my opposing attorney, whom I met for the first time. This attorney had a smartphone in her hand, and had pulled up a case, an opinion consisting of some ten pages, give or take, from which she read to me a single sentence from the small screen on her phone, completely and outlandishly out of context, which she claimed totally destroyed my case.
I politely told her that I disagreed with her legal assessment.
When we appeared before the judge, she did the same thing – pulled out her phone, read the single sentence from the case completely out of context, and proceeded to tell the judge that this destroyed my case.
I could tell from the judge’s reaction that he was not buying what she was selling, and as good fortune and advance preparation would have it, I pulled from my file a copy of the complete opinion of the case in question.
“I happen to have a copy of that case right here, your honor, that I’d be happy to share with the court, and I would suggest that reading the opinion will reveal that counsel’s characterization of that case is just not correct,” I said.
“No, I don’t need to see it, counsel,” the judge replied.
Obviously, this lawyer, who practiced regularly in this rural county, had compromised her credibility with the court long before this day.
Throughout the remaining pretrial discussions and the trial itself, the same pattern continued, outlandish assertions on the part of counsel that just weren’t credible and were not supported by the evidence.
I am always disappointed by lawyers who play fast and loose with the truth. And, I thought, it must be difficult to practice in this county where you’ve lost credibility with the judge.
Fortunately, this is rare. And I am of the firm belief that scrupulously maintaining one’s credibility with the court is a paramount consideration for any lawyer, and making the mistake of compromising that is a huge mistake indeed.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.