Prosecutions of lawyers in New York are often headline grabbing affairs, as evidenced by cases brought in recent years with varying degrees of success against Donald Trump's attorney, Michael Cohen, lawyers at Dewey & Leboeuf, and New York state politicians.
The public interest in these cases is understandable. In addition to the impact of the underlying conduct on alleged victims, each case raises the specter that the lawyer in the cross hairs of a prosecution may be convicted, incarcerated, required to pay restitution and fines that are generally not covered by professional liability insurance, and lose his or her license to practice law. These cases also grab the attention of the legal community, particularly firm leaders and their general counsel and malpractice carriers who justifiably worry about how to reduce the likelihood that their colleagues and insureds will attract the ire of prosecutors. Law firm leaders and insurers have long focused on enhanced internal financial and ethical controls, and more recently on improved access to mental health and other support for their attorneys. All of this makes sense—in addition to the potential reputational impact on law firms there is the risk that law firms and their insurers will face substantial financial consequences.
Five years ago, in an effort to better understand how and why lawyers run afoul of the criminal courts, we analyzed the cases that resulted in criminal convictions of attorneys during the preceding six years. That study reflected that prosecutors were placing a considerable emphasis, in a post-recession New York, on cases involving mortgage related fraud. It also demonstrated that the vast majority of the criminal convictions in federal and state court arose out of less sophisticated criminal conduct, often involving nothing more than theft of client funds.
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Originally published by New York Law Journal.
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