Legal Question in Legal Ethics in California
Question regarding a legal firm made up of one lawyer and a paralegal/admin who have been friends for 15+ years. The admin is responsible for many duties including preparing legal documents, taking client calls, handling the law firm's financial books including the checkbook, invoicing clients, etc. The firm has been in business for six years. The admin basically runs the office.
The firm takes a small city as a client to respresent when necessary. The lawyer recommends the admin to the client to be the city clerk, which involves collecting taxes, paying all debts and writing the checks for any client purchases, all while handling the client's checkbook. Each check must be signed by the admin/clerk and a member of the client.
The admin, for the past six years, has purchased things for the law firm with their own money and reimbursed themselves with a check from the firm, without ever an incident, never having been accused of any wrongdoing towards the firm. Receipts and invoices are always kept for the accountant who audits the firm monthly. The admin makes a small purchase for the client (under $300) and pays with the law firm's credit card. The admin mistakenly thought they used their own credit card (as is often done) and wrote themself a reimbursement check from the client's checkbook. The receipt was attached to an invoice and presented to the accountant. The check was signed by the admin and the client. The client paid for a service and did received the service.
At month's end, the accountant notices the firm has not been reimbursed for the purchase, and the admin is questioned. When the admin researches it and realizes what happened, the admin immediately reimburses the law firm and applies an invoice to correct the mistake. The next day the lawyer fired the admin.
Overall, the admin made an honest mistake that did not affect the client in any way, only the law firm which was immediately reimbursed. I read the legal definition of misappropriation as "intentional, illegal use of funds..."
In the case described above, is the admin guilty of theft or misappropriation of funds for clearly making an honest mistake, and is the lawyer in jeopardy of being disbarred for an ethics violation?
2 Answers from Attorneys
The lawyer is responsible for the actions of his or her employees. It is extremely unlikely that they would get disbarred over this, or anything more than a private censure most likely, but it IS an ethics violation that the attorney is responsible for. As for the admin, if the whole thing was an innocent mistake then the admin cannot be guilty of a crime that requires intent. Since an employer can fire an employee for anything that is not expressly prohibited by law, however, the attorney is certainly free to fire the admin for this kind of error. There is nothing that requires the admin to be guilty of criminal misappropriation to be fired.
This is the appropriate question for this category.
Lawyers are responsible for handling their client's property, and this includes their client's money. I read your post twice, and I do not see any mention of an attorney client trust account. This is a serious issue. Attorneys who handle their client's funds must use an attorney client trust account, and be able to show an audit trail. This is perhaps the number one cause of attorney discipline in this state.
There is a handbook at the California State Bar website that you can print out and provides detailed information and guidelines of running an attorney client trust account. Even though an attorney may delegate this task, he or she cannot delegate this responsibility.
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