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Unauthorized practice of a law and larceny

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latigo

Senior Member
I read recently that an attorney in Idaho whose license has been under suspension since November 2010 (for reasons and duration not explained) has been indicted for grand larceny in accepting retainer fees during the period of suspension.

If you were representing the defendant on the larceny charges, what might you be mulling over as possible defenses? What if those moneys had been placed in a trust account? Would that negate the element of appropriation necessary to sustain a charge of theft?What is the name of your state (only U.S. law)?
 


sandyclaus

Senior Member
I read recently that an attorney in Idaho whose license has been under suspension since November 2010 (for reasons and duration not explained) has been indicted for grand larceny in accepting retainer fees during the period of suspension.

If you were representing the defendant on the larceny charges, what might you be mulling over as possible defenses? What if those moneys had been placed in a trust account? Would that negate the element of appropriation necessary to sustain a charge of theft?What is the name of your state (only U.S. law)?
I'm not an attorney myself, but I have what some consider to be a keen grasp of the legal process, so I will take a stab at my own personal interpretation here.

I can see you challenging the element of complete control. If the money were indeed placed in a trust account, then the atty wouldn't have complete control over the money and its disposition (despite the atty's intended application). If a retainer is not used in its entirety, wouldn't the unused portion then be refundable to the client? And since the atty wasn't authorized to practice law during the suspension period, then he could never earn those retainer fees in the course of any alleged legal representation of the client, and the full retainer amount would then be refundable to said client.

Though the atty still has POSSESSION of the funds, his inability to justifiably utilize the funds in the trust account for a legitimate purpose means that full and complete control would never be his for the duration of the suspension period.

Thoughts?
 

BOR

Senior Member
Of course, the case law may offer some defense strategy, but according to the facial statute, INTENT, is the only defense. What was his INTENT.

Try to convince 12 people that even though he was suspended his intent was not to defraud, as the statute says, WRONGFUL taking.

If he is suspended, the taking is Wrongful, period. The defense may argue, of course, the crime was not "completed", therefore an Attempt charge is legally proper, since the Intent factor can not be proven by any culpable mental state needed?

http://www.legislature.idaho.gov/idstat/Title18/T18CH24SECT18-2403.htm
 

justalayman

Senior Member
what if the lawyer believed the suspension was short term and he was simply accepting funds for future work.
 

latigo

Senior Member
"Boise attorney accused of theft jailed
By Associated Press December 30, 2010 at 10:48 AM
Updated Saturday, Jan 1 at 1:34 PM

BOISE -- A Boise attorney accused of theft is now in the Ada County Jail.

Prosecutors say ____________ collected money from clients even after he was suspended from practicing law.

______________ was formally accused of felony grand theft by the Ada County prosecutor's office, which issued a warrant for his arrest. He was arrested Thursday night at a Boise residence.

The Ada County prosecutor's office said anybody who paid ___________ for future legal services after Nov. 15 should contact local police.

The Idaho State Bar Association says ____________ is serving an interim suspension for a variety of separate infractions and is barred from practicing pending the outcome of that case.

According to the Bar Association's official publication The Advocate, _______ was publicly reprimanded in 2007 for altercations in Ada County court. Then, he agreed to anger management courses."


_______________________

As departed, but never forgotten, humor novelist P. G. Wodehouse's invention, the British aristocrat Bertie Woostrom might say:

"____________ is deeply in the soup?" Eh what, Jeeves?
 

justalayman

Senior Member
about all I can find is that exact same article except, he was in violation of IBCR 516.



LEGAL NOTICE <name> (INTERIM SUSPEN
LEGAL NOTICE <NAME> (Interim Suspension) On November 16, 2010, the Idaho Supreme Court issued an Amended Order Granting Petition for Interim Suspension of License to Practice Law immediately suspending the license of Boise attorney <NAME>. The Idaho Supreme Court also ordered that Mr. <NAME>shall comply specifically with I.B.C.R. 516 and 517 until further order of the Court A formal charge case is pending before the Professional Conduct Board. Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, ID 83701, (208) 334-4500. Pub. Dec. 17, 2010
RULE 516. Duties after Limitations on the Right to Practice Law
(a) Duties. Unless otherwise specified, a Supreme Court order imposing interim suspension, suspension, disbarment, resignation in lieu of disciplinary proceedings or transfer to disability inactive status, shall be effective upon date of entry. After the date of entry, the Respondent shall:
(1) not accept any new retainer or engage as a Lawyer for another in any new case or legal matter of any nature;
(2) have 14 days after the effective date of the order limiting the right to practice law to wind up and complete on behalf of any client, all matters pending on the entry date;
(3) refund any part of any fees paid in advance that have not been earned;
(4) move for leave to withdraw, or to substitute counsel in any pending litigation, and notify opposing counsel and adverse parties of such withdrawal or substitution of counsel;
(5) not use any sign or advertise that he or she, either alone or with any other person, has, owns, conducts or maintains a law office or office of any kind for the practice of law, or that he or she is entitled to practice law, and he or she shall promptly remove any sign indicating same;
(6) not use any stationery, bank accounts or checks whereon his or her name appears as a Lawyer or attorney at law;
(7) promptly remove his or her listing from any telephone directory indicating he or she is a Lawyer or attorney or holds a similar title;
(8) promptly contact the publishers of ******dale-Hubbell law directory and any other listing in which his or her name appears and cause the removal of any listing that states he or she is a member of the Bar in good standing;
(9) comply with the provisions of Idaho Code section 30-1309, concerning membership and participation in professional service corporations;
(10) not practice law, not appear as an attorney before any court, justice, judge, board, commission, division or other public authority or agency and not share in any fee for legal service performed by himself or herself;
(11) not maintain a presence or occupy an office where the practice of law is conducted; and
(12) comply with any other requirement of the Supreme Court.
(b) Failure to Comply. Failure to comply with the provisions of this section may be grounds for a further Sanction, the imposition of a previously withheld Sanction, the denial of a petition to dissolve an interim suspension or the denial of a motion to reinstate.
that clearly denies the right to both receive deposits of even hold them during this suspension. He was limited in actions from doing anything where he would hold himself out to be a lawyer. Still not sure how it could rise the the level of grand theft.
 

justalayman

Senior Member
In Idaho, that means that the theft was in excess of $1000.

Theft Class: Idaho Laws

Sounds like the lawyer took the money in exchange for services and he knew that there was no legal way to provide those services, rendering them worthless. Theft by false promise, 18-2403 (d) 1.
I understand the value. What I meant was how can a administrative suspension and it's rules rise to the level of theft? I know he wasn't able to accept the retainers because of the rule saying he couldn't but how does that become a criminal act?

the theft by false promise appears to be promising but only if the suspension was permanent. Until it became permanent, as long as the money was handled as such money is required to be and there was intent to utilize the money for legal fees once his license was released, I would question whether there were any false promises.
 

Some Random Guy

Senior Member
Until it became permanent, as long as the money was handled as such money is required to be and there was intent to utilize the money for legal fees once his license was released, I would question whether there were any false promises.
And that's where we are missing some facts. We don't know what monies were received by the suspended lawyer and whether he promised to represent the client in court actions that would occur during his suspension. For all we know, he may have been caught while filing motion with the court in regards to an ongoing case.
 

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