Benjamin Thomas Field, California Prosecutor Disciplinary Suspension Update

In February I reported on the proposed long disciplinary suspension of Benjamin Thomas Field.  The ABAJournal.com is confirming that the California Supreme Court upheld a lengthy 4 year suspension for this attorney.  This is a very unusual outcome ion a disciplinary case involving prosecutorial misconduct;  as I said at the time, there is at least one Judge on the bench, here, in OurTown who by the standards Mr. Field is being held to, should have been disbarred. 

Please go back and read the original post at the link which also had a link to the recommended disciplinary action.  As I said at the time, I really had ambivalent feelings about the action taken against this guy.  There certainly is good reason for the steps taken by the disciplinary authorities just from the standpoint of failing the taxpayers on both a fiduciary and a public safety basis.  But it also seems pretty clear that this is a kid who lost his way, and ultimately I have a sense that better mentoring would have resulted in a better outcome for this lawyer.  You see, I'm over-identifying. 

Disciplinary Suspension of Superstar Former Federal Prosecutor?

The BLT (Blog of the Legal Times) reports on the pending disciplinary suspension for a "Superstar" former assistant U.S. attorney for the District of Columbia arising out of multiple acts of prosecutorial misconduct dating back some 14 years.  According this guy's current "Big Law" firm biography.  G. Paul Howes (you can always tell Big Firm guys, they do this "first intial"-thing) was an Enron litigation lawyer recovering huge sums of money for defrauded stockholders, a former ABC news correspondent, and former counsel to then FBI director William Webster. 

Here's the BLT story:

"In what marks the latest twist in the long-running disciplinary proceeding against former federal prosecutor G. Paul Howes (pic), the nine-member Board of Professional Responsibility issued tonight a split recommendation on what sanctions Howes should receive for his past alleged misconduct.  In the board’s report and recommendation to the D.C. Court of Appeals, four members recommended disbarment for the former assistant U.S. attorney for the District of Columbia, three recommended a three-year suspension of his license, and two recommended a one-year suspension.

Because none of the recommendations was in the majority, the final decision on Howes’ sanction will be up to the D.C. Court of Appeals. Given that the most miniumum recommended punishment was a one-year suspension, an ethics lawyer said the appeals court could suspend Howes’ license before making a final decision.

Howes, who served as a federal prosecutor in Washington from 1984 until 1995, handled some of the District’s most high-profile drug, homicide, and gang cases in D.C.’s federal and local courts, including the Card/Moore and Newton Street Crew cases. The investigations into his alleged misconduct has spanned more than a decade and involved two disciplinary agencies. In 1998, the Justice Department’s Office of Professional Responsibility issued a report that determined Howes authorized more than $140,000 in payments to 132 witnesses, including individuals who were not entitled to receive them. Howes was also accused of intentionally failing to disclose the use and misuse of the vouchers to defense counsel.

Howes’ alleged misconduct resulted in reduced prison sentences for at least nine defendants, many of whom were serving life sentences.  In a 2007 disciplinary hearing before a committee of the Board of Professional Responsibility, Howes admitted to six ethical violations, including false statement of material fact to a tribunal, failing to timely disclose evidence that tended to negate the guilt of a defendant, and engaging in conduct that interfered with the administration of justice.

On two other charges--prohibited inducement to a witness and committing a criminal act that reflects adversely on a lawyer's honesty--Howes argued that he did no such thing. The hearing committee found in August that the evidence against Howes did not support the inducement charge but that his actions did amount to false statements, which violates federal law.

The hearing committee ultimately split on its recommendation for sanctions with one arguing for disbarment, another arguing for a two-year suspension, and a third recusing.

Howes, who now works for Robbins Geller Rudman & Dowd in San Diego, Calif., has argued that despite his admitted misconduct, there were mitigating factors that ought to be considered. The OPR report found that there was no evidence Howes personally benefited from the use of vouchers, that no witness changed his or her testimony as a result of the vouchers, and that Howes was “undoubtedly” using vouchers to advance the interest of the prosecution.

Howes has also argued that because of delays in the disciplinary proceedings against him, and because of his 'ethical and honest practice for the past 14 years,' he deserves leniency.

According to the board’s 87-page report and recommendation to the D.C. Court of Appeals, Howes conceded that 'under ordinary circumstances and taking into consideration all the facts and circumstances and all the violations stipulated to, ' a three- to six-month suspension ' may be appropriate.' He argued that once the mitigating factors were taken into consideration he should receive a 30-day suspension without having to show fitness upon reinstatement.   That argument found little traction among the board’s members, but even then they could not agree on what sanction he should actually receive.

The report, which is signed by its chair Charles Willoughby, inspector general for the District of Columbia, said, 'The board unanimously agrees with the Hearing Committee’s findings of fact and conclusions of law and we have adopted them with some exceptions. . . . There is no agreement by the Board regarding the appropriate sanction.'
Deborah Jeffrey, a Zuckerman Spaeder partner; Ernestine Coghill-Howard of the Substance Abuse & Mental Health Services Administration; and Russell Smith III of the Office of the U.S.Trade Representative, joined a statement in which they recommended disbarment for Howes to 'express the condemnation that [Howes’] conduct merits and to deter others from similar misconduct.'

In a separate statement, Theodore Frank, an Arnold & Porter senior counsel, also recommended disbarment.

Ray Bolze, a Howrey partner and the board’s vice chair, drafted a statement that was joined by Willoughby and Jean Knapp a non-lawyer member of the board. He recommended a three-year suspension without having to show fitness upon reinstatement because, 'In light of the unchallenged array of testaments by fellow attorneys, and two judges as to [Howes’] unblemished law practice since leaving the USAO over ten years ago, we find that Bar Counsel has failed to establish by clear and convincing evidence that there is a serious doubt regarding [Howes’] fitness to practice after the expiration of the suspension.'

James Mercurio, a Washington-based solo practitioner, and Carmen Cintron, an administrative law judge at the Federal Energy Regulatory Commission, recommended a one-year suspension because, 'No one has suggested that the funds expended through the vouchers [Howes] signed were not prudently and efficiently directed toward the achievement of the highly important public goals that [Howes] was pursuing during the Card/Moore and Newton Street Crew cases' and that Howes’ conduct did not warrant a 'career ending sanction.'

D.C. bar counsel Wallace 'Gene' Shipp Jr. declined to comment.

In a statement, Howes’ attorney Paul Knight of Nossaman said, 'I intend to read this Report and Recommendation carefully and make a decision within the next 20 days as to the next appropriate step for Mr. Howes.'"
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I have recorded on this Blawg many stories of bad lawyer, especially my story.   I remain amazed that disciplinary cases can drip, drip, drip like "chinese water torture."  Does that mean Mr. Howes, who apparently committed unprosecuted federal felonies of false statements, should not be disciplined?  Probabaly not, he or his attorney may have had a hand in the many delays.  But it is frightening how many years after an event--after numerous physcial relocations and career moves you can be asked to account for your alleged unethical dealing with long closed legal matters.

The Bad Lawyer Gets Whacked!

"The [Our State]Supreme Court, today imposed a 24-month suspension against the license of [an] OurTown attorney...for engaging in a pattern of misconduct in which [he] commingled his own funds with client funds on deposit in his law office trust account, and improperly used the trust account as a personal bank account and operating account for an extended period in order to avoid collection actions by his creditors for unpaid judgments and delinquent taxes.


In a 6-1 decision, the Court voted to adopt findings by the Board of Commissioners on Grievances & Discipline that [the attorney] engaged in fraudulent trust account practices and deliberate deceptions between January 2006 and May 2007. Specifically, [he] violated the rules of professional conduct that require an attorney to maintain a trust account in which only client funds are held, to avoid commingling of his personal funds with monies held for clients, and to keep full and accurate records of all funds deposited to and withdrawn from his trust account. The Court also found violations of the disciplinary rules that prohibit attorneys from engaging in conduct prejudicial to the administration of justice and conduct that adversely reflects on an attorney’s fitness to practice law.

The Court adopted the disciplinary board’s recommended sanction of a 24-month license suspension, and imposed as pre-conditions for reinstatement the requirements that [the attorney] complete six additional continuing legal education hours in law-office management and accounting and fully pay or provide evidence that he has entered into settlements of 12 court judgments currently outstanding against him totaling nearly $25,000."

Let me add that the Our State Supreme Court adopted the findings of the disciplinary board that the [Bad Lawyer] had never been previously disciplined in twenty-eight years, nor had he ever taken or misused client funds.
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When I started the Bad Lawyer Blawg, it was my intention to tell you everything.  I did many wrong things in the management of my law office over the years, I did not do bad things.  I mistakenly believed that the distinction between the wrong things that I did (versus the bad things that I did not do);  and, the wrong things I omitted to do were not going to catch up with me.  I believed that if my acts and omissions did catch up with me the violations would not result in disciplinary action.  I did not appreciate the gravity of my actions.  I did the things that resulted in my suspension. 

My special insight as a blawg-er is the fact that for twenty-eight years I practiced law at the ground level-the street level.  I reached a level of prominence in Our Town and in Our State--and, I accomplished many overall positive results for clients.  I cared about pushing the law in the direction of helping to make positive change, particularly for victims of child sex abuse. 

I am personally, ashamed, and disgraced.  I do have a conscience and as I said when this all started sleep has been difficult.  The feeling is surreal.  Since I don't drink, or do drugs prescription or otherwise, there is no bufffer on my feelings, the emotions are full force. I am suffering and surfing on and through wave after wave of guilt and remorse.  My dear friends are caring and supportive.  Whether I will be able to professionally return remains another matter--I liked to and I plan to, but who knows, even a brief suspension is like a professional drowning.  Not to overdo the metaphor, but the last two years have been not unlike a professional waterboarding, so at least that's over, I hope.

The Bad Lawyer blawg will continue in its own snarky way to give you news and views of all things--> law.  At the same time I'll also try to document, my humiliations and my fight to survive and return to what I did, proudly once--represent people in Our State who need an advocate who gives a damn about the law, and the people, the courts and law impact. 

Thanks for following the Bad Lawyer Blawg.

Ah, welcome!

Have a seat. I paid $700 for those wing-back "client" chairs about 15 years ago. They were used then, but very nice. Velour. Comfortable? I've always liked them, but I think they are little too comfortable for the purpose. When I need you to sign your life away--the chairs are a little too low and too cumbersome. But we're just talking, and these chairs are just right. If I'm lucky money will fall out of your pocket and I'll get to it before the cleaning lady does.

I received a notice from the disciplinary panel that heard the action against me, the recommendation is a one year suspension plus a year probation if I can (a. pay off all my creditors; and (b. take a law office management class; to give proof that I learned how to supervise my big-titted secretary so as to prevent her from writing anymore checks out of my Trust Account to pay her Nordstrom Credit Card. Apparently the panel of my fellow lawyers isn't convinced that the sheer horror of learning that this took place is enough to adequately chastise me. And isn't ironic that the debtor is punished by having his or her ability to earn income stripped from him contingent upon paying their bad debts a truly functional way of sorting it all out. When I read this disciplinary panel recommendation, I thought: righto, old chaps I'll just ring up accounts payable and order them to pay those pesky creditors--isn't that what they do in the white shoe firms? I'm a bad lawyer and a deadbeat.

How did this Bad Lawyer come to the attention of the authorities? Next time.