American jurisprudence

In Red are my observations.

In Re of Fischer, 89 P.3d 817 (Colo. 2004)

Summary:

Pro

bono

work,

alongside

other

mitigating

circumstances,

mitigated the sanction imposed.

Respondent Mark Joseph Fischer refused to pay his clients former husband.
He admitted during the attorney disciplinary proceedings to have disbursed funds to
his dissolution-of-marriage client and to himself in the amount of his attorneys fees,
in a manner not in accordance with the terms of the separation agreement adopted
by the court. His justification for refusing to pay his clients former husband was
that his client had directed him as her attorney to withhold payment from her
former husband because of certain issues she had encountered in the disposal of
certain conjugal properties.
The Hearing Board ordered that he be disbarred since disbarment was the
presumed sanction for the misappropriation cases, such as Fischers case, aside
from violating the courts order (i.e., separation agreement adopted by the court).
Respondent Fischer appealed from the Hearing Boards order disbarring him.
Respondent argued that the Hearing Board did not appropriately consider mitigating
circumstances such as his cooperation during the disciplinary proceedings,

reputation in the community, pro bono activities and service, and his practice in an
area of the State where few attorneys are available.
The Supreme Court of Colorado agreed with Respondent Fischer. The Court
held that the sanction imposed by the Board was manifestly excessive and
unreasonable for it failed to consider and balance the aggravating and mitigating
circumstances.

After discussing the most relevant mitigating circumstances, the

Court reiterated the ratio in decided cases that an attorneys pro bono work is a
mitigating factor. Hence from disbarment, the Court reversed the Boards decision
and instead imposed suspension for one year and one day.
However, the extent of pro bono work as regards mitigating a penalty cannot
be fully described due to the presence of other factors factors which are
preliminarily discussed by the Court before discussing the pro bono work rendered
by the respondent.

In Re Disciplinary Action against Pyles, 421 N.W.2d 321 (Minn. 1988)

Summary: Due to the pro bono work which strained his personal and family
finances, respondent Pyles misappropriated his clients funds.

He justified

this however by what he considered a superseding moral ethic to aid the

underdog. The Court took notice of this and hence ordered that respondent
Pyles be indefinitely suspended from the general practice of law or any
limited practice of law that involved rendition of legal services or advice to

clients

for

fee

or

otherwise,

instead

of

upholding

the

referees

recommendation of disbarment.

This case stemmed out of the various violations of rules of professional conduct
applicable to lawyers committed by respondent David A. Pyles.

The action was

instituted by the Director of the Lawyers Professional Responsibility and was

referred by the court to a referee.
regards

client

and

escrowed

The violations included: misappropriations as

funds;

misrepresentations

to

conceal

those

misappropriations; failure to keep adequate trust account records and false

certifications relative to the trust account records; conflict of interest; and, failure to
timely file income tax returns.
Respondent Pyles generally admitted the allegations. His defense however was one
claiming mitigation because he claimed, at the time the violations occurred, he was
experiencing severe psychological problems which were the cause of his conduct.
This defense however was rejected by the referee and recommended that he be
disbarred.
On appeal, the Supreme Court of Minnesota however imposed indefinite suspension
however due to the special circumstances of the case. More so, the reversal was
amply supported by the referees findings.
It was found by the referee that outside the legal profession, respondent Pyles led
an exemplary life. His entire nonprofessional life had demonstrated his care and
concern for the less privileged. In addition to generally attending to the needs of
the underprivileged, it was found that respondent often rendered professional

services for which he received no fees or fees considerably small than those
appropriate for the services rendered, which in turn had a detrimental effect on his
own

personal

and

family finances.

When

that

happened,

he

began

to

misappropriate client funds. From the diagnosis of the psychologist who examined
respondent, Pyles had rationalized the behavior constituting the misconduct as
being justifiable because of what he considered as a superseding moral ethic which
was to aid the underdog. His actions, as furthered by the Court, were not motivated
by avarice nor for personal, social or financial aggrandizement.
However, the primary justification by the Court was that respondent Pyles was no
longer engaged in the general practice of law. He rather rendered services which
did not involve the rendition of legal services or the giving of legal advice to clients
on a fee basis nor the handling of clients money. These services, according to the
Court, did not pose any threat to the public.

In Re Disciplinary Action against Lochow, 469 N.W.2d 91 (Minn. 1991)

Respondent Michael Lochow was charged of misappropriating his clients money, of

misrepresentation, and of neglect to his clients cause. The referee who heard his
disciplinary proceeding recommended that respondent Lochow be suspended for 18
months. Respondent Lochow appealed from this order claiming that the sanction
was not appropriate.
The Supreme Court of Minnesota lessened the period of suspension to 6 months.
The Court opined that the 18-month suspension was too severe for cases involving

misrepresentations and deceptive statements made to the court. In its discussion,

the Court noted the pro bono service respondent Lochow rendered during his law
practice as found by the referee. Moreover, as noted by the referee, respondent
Lochow was involved in community activities, including volunteer work for the
homeless and the elderly.
However, the primary justification by the Court was that the allegation of
misappropriation was unfounded. This finding was supported by the referee who
heard the disciplinary proceeding. Moreover, it was of the Courts opinion that the
penalty of suspension for 6 months was too severe for misrepresentation and
deception cases.

***In Re: Chin W. Fong, 762 N.Y.S.2d 367 (N.Y. App.Div.2003)

The Departmental Disciplinary Committee ordered, based on the report of the

Referee who presided over the disciplinary proceeding, that respondent Chin W.
Fong be suspended from the practice of law for no less than 18 months due to the
seven

violations

respondent

committed.

These

violations

included

misappropriation, writing checks payable, failure to maintain appropriate escrow

records, neglecting a legal matter, prejudicing a client, and engaging in conduct
adversely reflecting on his fitness as a lawyer.
Contrary to the Referees findings however, the Hearing Panel rejected the formers
conclusion. It opined that respondent did not engage in a pattern of misconduct but

had made one mistake instead.

Hence, it recommended that the appropriate

penalty, considering the bulk of mitigating circumstances, was public censure.

The Appellate Division of the Supreme Court of New York however affirmed the
referees findings.

It found respondents misconduct was serious.

More so,

respondents numerous acts of misconduct with respect to the account he was

handling were not alone. Hence, suspension was the proper sanction.
However, due to the considerable evidence in mitigation, including respondents
regular pro bono work on behalf of four community organizations, the number of
months was reduced to 3.
This case illustrated how pro bono work mitigated the sanction to be meted out.

In Re Hager, 812 A.2d 904 (D.C. 2002)

Respondent Mark Hagers professional services were engaged to pursue legal action
against Warner-Lambert Co. with respect to its head-lice shampoo Nix because the
product was ineffective in eradicating head lice as a Nix-resistant strain of lice had
evolved.

His clients executed a contingent fee agreement, with his co-counsel

Traficonte. It was for the purpose of investigating potential bases for a class action
suit against the Warner-Lambert Co.
Warner-Lambert Co. however contacted Traficonte to begin settlement, with
respondent Hager aware of and involved in the negotiations. At first, he informed

his clients that negotiations with Warner-Lambert Co. had begun but he did not
disclose any terms.
Without informing his clients, respondent Hager, Traficonte and Warner-Lambert
entered into a settlement agreement. Respondent Hagers clients were paid due to
the settlement agreement.
One of respondents clients however asked whether they (Hager and Traficonte)
were paid by Warner-Lambert to abandon their representation.

They refused to

reply however. This prompted the client to file a complaint with the Bar Counsel
concerning Hager only.

He was found to have violated 8 rules and it was

recommended that he be suspended from practice for 1 year.

Respondent contends however that the Bar Counsel failed to prove by clear and
convincing evidence that he violated any Rules of Professional Conduct.
The Court of Appeals of the District of Columbia found respondent Hager to have
violated the rules.

His violations included conflicts of interests, dishonesty,

improper conduct during settlement negotiations, and failure to protect a clients

interests once the representation has ended. Being a conflict of interest case, the
sanction to be meted out was from informal admonitions to lengthy suspensions.
In determining the appropriate sanction against respondent Hager however, the
Court considered some mitigating circumstances such as his extensive record of pro
bono service.

Hence, the Boards recommendation of 1 year suspension was

upheld. However, his reinstatement, unlike in other cases where a number of years
had to elapse, was conditioned on certain compliance.

There were other circumstances enumerated by the Court.

These included

respondent not having been previously subject to disciplinary proceedings and his
good character in general as testified by three witnesses. However, from the facts,
it seemed the pro bono work, alongside other mitigating circumstances, did not do
much.

In fact, unlike the Board which did not impose further reinstatement

conditions, the Court imposed conditions before Hager may be reinstated.

In Re Disciplinary Action against Dvorak, 554 N.W.2d 399 (Minn. 1996)

The case stemmed out of respondent Shirley Dvoraks act of filing a false tax return.
She even admitted to the commission of the same by entering a plea of guilty in a
federal court in North Dakota. Subsequently, she was charged for improperly billing
Minnesota clients in a bankruptcy matter.
The referee, after due hearing, concluded that Dvorak violated the Minnesota Rules
of Professional Conduct. Hence, the referee recommended that she be suspended
from the practice of law for a minimum of 6 months. However, the Director of the
Office of Lawyers Professional Responsibility urged a suspension of not less than 12
months.
The issue is the appropriate penalty to be imposed.
The Supreme Court of Minnesota considered several mitigating factors, one of which
is Dvoraks substantial pro bono and volunteer work to her community.

Other

mitigating factors included were that Dvorak was not previously subject to discipline
in her 15 years of practice, her substantial personal problem brought about by the

illness and death of her father, her full cooperation in the disciplinary investigation,
and her outstanding reputation for honesty and hard work within the profession.
Moreover, the Court believed that the violations in question were remote and
isolated incidents in an otherwise distinguished legal career.

Hence, she was

suspended only for 30 days.

Pro bono work, when partnered with other circumstances, convinces the court to
reduce the penalty imposed. Pro bono work cannot be the sole basis for mitigation.