A career's worth of air travel, hotels and restaurants

Issue November/December 2016 By Richard P. Campbell and Suzanne Elovecky

The practice of law is often intense, competitive, and stressful. It is also financially demanding both in terms of the cost of doing business (particularly in a major city like Boston) and of making ends meet at home (where house prices are north of $500,000 in many cities and towns and private college tuition, room, and board average $65,000 per year for each student). In private practice, lawyers confront the din of the incessant drumbeat for new business. The need to produce an ongoing flow of business drives lawyers to spend time and fortune at city, state, and national professional association conferences, often in remote (but alluring) locations. Most lawyers are not all that good at business generation. But some individuals just have the innate capacity to work a room, to publish papers and deliver speeches, and to find time to squeeze this extra networking into busy practices and personal lives. The fast lane can become the wrong path for anyone. For a lawyer, the fast lane can lead to ruin. This column relates the story of a prosperous and prominent Kansas lawyer who fell victim to the fast lane, ignored his ethical compass, and suffered the ignominy of disbarment.

Larry Spikes was a lawyer with a Wichita, Kansas, law firm renowned for its representation of Beechcraft Corporation, the manufacturer of general aviation aircraft. Mr. Spikes was one of those lawyers who could work a room and generate business for his law firm. He was an active participant in state and national professional associations and prominent in local civic affairs. Mr. Spikes practice caused him to travel extensively across the nation; viz., air travel, hotels and restaurants were part of his daily life. He was "an outstanding lawyer" who had "the respect of his peers, clients, and friends." At his law firm, he ultimately rose to the position of managing partner. But, his expensive life style was made more challenging by college tuitions for his children.

At some point, Mr. Spikes envisioned a better, more financially profitable life by forming a new law firm. His former partners were unhappy with his decision to start a competitive law firm, believing that they had underwritten his success by financing his networking and serving up a line of high quality clients and cases to him. So, instead of cheering him on as a hale and hearty fellow, his former partners conducted a detailed audit of his time and expenses, charged to clients and to the law firm. The firm's audit disclosed a course of conduct that included manipulation of depositions and conferences with expert witnesses that coincided with distance weddings and vacations. Airfare, hotel rooms and dinners were charged to clients or to the firm when the real purpose for the expenditures was personal. In some circumstances, the expenses were charged to clients or to the firm even when the deposition or conference was cancelled. In other instances, the expense reports were entirely fictional. In the overall scheme of things, the amount of money involved was small ($12,000 over six or seven years). However, the pattern of financial misappropriation from clients and the law firm was persistent. His former partners reported Mr. Spikes' actions to the Office of the Disciplinary Administrator, "a state agency in the judicial branch working under the direction of the Kansas Supreme Court. The Disciplinary Administrator reviews complaints of misconduct against lawyers, conducts investigations, holds public hearings when appropriate, and recommends discipline to the Supreme Court in serious matters." http://www.kscourts.org/rules-procedures-forms/attorney-discipline/default.asp (last visited on September 6, 2016).

The hearing panel found that Mr. Spikes "violated Rules 1.15(b) (2004 Kan. Ct. R. Annot. 414), and 8.4(c) and (g) (2004 Kan. Ct. R. Annot. 485) of the Kansas Rules of Professional Conduct." While a review was pending before the Kansas Supreme Court on the final hearing report in accordance with Supreme Court Rule 212, Mr. Spikes voluntarily surrendered his license to practice law in Kansas. The Kansas Supreme Court accepted Mr. Spikes' license surrender, disbarred and revoked his license and privilege to practice law, and struck his name from the roll of attorneys licensed to practice law in Kansas.

Kansas Rule 1.15 (b) provides:

Upon receiving funds or other property in which a client of third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

Kansas Rule 8.4 provides:

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; and

(g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.

Massachusetts Disciplinary Rule 8.4 is materially identical to the Kansas Rule, including the official comment referencing offenses involving dishonesty and breach of trust. The following sentence is directly relevant to the low level fraud that Mr. Spikes perpetrated: "A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation."

Our privilege to practice law in the commonwealth carries with it significant obligations to our clients and to our law firm colleagues. Dishonesty, deceit, and misrepresentation regarding time and expenses - no matter how small the amounts may be - may lead to termination of our privilege and the adverse fiscal, social, and familial consequences that flow from it.

Richard P. Campbell is a fellow of the American College of Trial Lawyers and a past president of the Massachusetts Bar Association. He founded Campbell Campbell Edwards & Conroy, P.C., a firm with a national practice, in 1983.

Suzanne Elovecky practices at Todd & Weld LLP, where she enjoys a diverse complex commercial litigation practice representing individuals and corporations in contract disputes, employment disputes, automobile dealership matters, shareholder disputes, and trademark, trade secret and copyright disputes.  Suzanne is a member of the Women's Bar Association, the Boston Bar Association, and the Massachusetts Bar Association (Complex Commercial Litigation Committee; Professional Ethics Committee).

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