Lawyers in Jail: A Review of Attorney Crimes
by Ernst Mitchell “Mitch” Martzen
The Texas Bar Journal (TBJ) reported only 110 significant cases of attorney discipline resulting from criminal behavior over the last five years. Compared to non-attorneys, Texas attorneys are substantially less likely to face serious criminal charges. The TBJ’s disciplinary reports from 2007-2011 indicate that Texas attorneys who do engage in criminal behavior are usually involved in major white collar crimes, including fraud, breach of fiduciary duty, tax evasion or theft. The average attorney offender is a 52-year-old male, and the average term of confinement imposed is 5 to 7 years.
Just over half of the 110 significant criminal cases resulting in attorney discipline were prosecuted in Texas state courts. Almost all of the rest were prosecuted by United States Attorneys. Three cases were prosecuted in other state jurisdictions, and one attorney was the subject of a U.S. Air Force court-martial. Even though the overall rate of prosecution for attorneys was low, the ratio of federal to state prosecution was much greater than for non-attorneys.
Federal Crimes: Approximately 15,000-20,000 new criminal cases are filed each year in the four Texas federal districts. In 2010 alone, the Department of Justice reported that the U.S. Attorney’s Offices for the Southern District of Texas and the Western District of Texas, both of which have a substantial border-crime caseload, filed over 7,000 criminal cases apiece. The Eastern District of Texas and the Northern District of Texas filed fewer than 1,500 cases combined during the same year. Even after discounting for border-crime cases, the federal prosecution of attorneys in Texas is a very small part of the total caseload. In fact, federal convictions resulted in fewer than 50 TBJ-reported disciplinary actions over the last five years.
More than 60 percent of the federal attorney crimes were fraud related, including bank fraud, wire fraud, mail fraud and healthcare fraud. Just over 10 percent were tax-related offenses. Other offenses included money laundering, bribery, obstruction of justice, drug offenses and child exploitation offenses. The average age of a federal attorney-offender at the time of discipline was 51. Approximately 10 percent of federal attorney-offenders received non-jail sentences. The average term of confinement for offenders who received any term of confinement was 55 months. There is no parole in the federal system, and most offenders serve nearly all of their term of confinement.
Texas State Crimes: More than 200,000 new criminal cases are filed each year in Texas state district courts. A very small percentage of those cases are filed against attorneys. State crimes accounted for just over 50 TBJ-reported disciplinary actions in the last five years. Attorneys certainly committed misdemeanors during this timeframe; however most of those misdemeanors, such as Class C traffic tickets or first offense DWIs, would not be cause for public discipline and were not reported.
By far, the leading crimes were theft and misuse of fiduciary property, accounting for nearly 40 percent of state crimes committed by attorneys. Forgery and tampering with a government record were also common, occurring in about 15 percent of cases. Criminal barratry convictions, by contrast, were quite rare. Nearly half of Texas attorney-offenders did not have to serve jail time, being sentenced to deferred adjudication, straight probation or some other non-jail punishment. Those who were sent to confinement often received sentences of 65-75 months. Unlike the federal system, Texas has generous parole rules, and the offenders confined by the State of Texas will likely serve less total time than those confined by the Federal Bureau of Prisons even though the federal sentences appeared shorter. The average age of a Texas attorney disciplined by the Bar for a state crime was 51.
Lessons Learned. Breaches of Trust: Over half of all attorney crimes involved dishonesty, such as fraud, tax evasion, forgery or theft of fiduciary property. These offenses are taken very seriously, and nearly every attorney convicted of such crimes ultimately resigned from the bar or was disbarred. Watch-out for the Sting. Attorneys should be especially aware of the existence of occasional sting operations targeting attorneys. In one case last year, an attorney received discipline because she had agreed to launder money through her trust account in exchange for a 15 percent fee. The deal was definitely too good to be true, because the guy with the money turned out to be a DEA confidential informant. Even the Small Fry: At least one attorney received public discipline for receiving multiple Class C misdemeanors—probably traffic tickets. Remember that too many of even the most minor offenses can become a very public mark on your state bar record.
Mitch Martzen is a solo practitioner in Dallas and a reserve member of the U.S. Air Force Judge Advocate General’s Corps. He can be reached at email@example.com.