Dubois-Mark
Attorney Mark Dubois ()

A few months ago came another report of one of us supposedly stealing money. That’s not really news. In fact, it used to happen so frequently that when I was prosecuting these cases I had trouble keeping track of who had (allegedly) stolen what. The difference is that this time, the accused is the late Bill Gallagher, a New Haven lawyer and dean of the bar who died on Christmas day after a long illness.

If reports are true, there is about $1.5 million gone. Mercifully, the money was apparently stolen from reimbursements due to medical providers, insurance companies and the state, all of which had been held from clients’ settlements, and not from clients. It appears that the client security fund may cover the losses, but the whole thing takes the wind out of your sails. When the bad actor has little redeeming value, he is easy to condemn. When the guy was not only a friend but the “last person anyone would suspect” (to quote just about everyone who speaks of the matter) it’s a different thing entirely.

Faced with mounting losses of client money a decade ago, our judges followed New Jersey and some other states and adopted a program of random audits of clients’ funds accounts. We had been warned by those who went before that the random audit process was no panacea, because, in typical governmental fashion, the funding available for auditors would be so poor that, at best, they would never be able to audit more than a tiny number of the registered accounts in any year.

Mostly, the program would serve (we hoped) as a deterrent and as a sop to those in the legislature who thought that maybe it was time for the bar to become less “self-regulated.” As had also been predicted, most of the audits found that lawyers are sloppy bookkeepers and middling businesspersons, but not crooks.

Because the program was truly random, with the accounts selected by a computer, we knew that we would spend (waste) a lot of time auditing accounts registered by the bigger firms who had many, many trust accounts. That was a matter of simple statistics. Predictably, those accounts yielded little work for the enforcement side.

We also knew that the most likely offender would be a middle-aged or older white male in a solo or small firm who had unrestricted access to client money with little or no supervision. But the experience in other states which had tried “targeted” audits was that the solo, small firm, and minority bars were offended at being singled out for special treatment and the random model became the dominant one. Very few audits have led to the discovery of theft. Folks who are going to steal cover their tracks too well. One simple trick is to not register the account you are stealing from. That makes it invisible to the computer.

Even if we had adopted targeted audits, I have to say that it is much more likely that I would have been targeted much sooner than Bill Gallagher. Bill was a former president of both the Connecticut Trial Lawyers Association and the Connecticut Bar Association. He was an accomplished appellate lawyer. He was not only the “go-to guy” for appellate questions, but was kind and generous with his time and knowledge. He did a lot of work for free.

A few years ago, he told me that he was going to have to work until he died, as he had saved nothing and was supporting a large extended family. He died after a long bout with debilitating disease, but he was in the office up until a very few days before he passed.

The bar is now working through the steps of the Kubler-Ross grieving process, from denial, to anger, to bargaining, to depression to acceptance. A lot of the anger seems to be directed to my colleagues who discovered the losses and brought them to light. Bargaining seems to involve those who are sure it is all a bookkeeping kerfluffle, and if only folks would look again, or find that elusive hidden account, they would locate the missing money.

Because I have gone to many of these dances, I pretty much start at acceptance, though this time depression was a big part of it. None of us are perfect; we all try to be superman. The economics of practicing law makes all of us susceptible to winding up in circumstances where we are lured into using unguarded funds to close a short-term budget gap (which always grows wider and wider).

When my non-lawyer friends wonder at the phenomenon of lawyers stealing, despite every effort by lawyer regulators to stop it, all I can do is sigh and point out that we are all flawed. Even our heroes.

Mark Dubois, the former chief disciplinary counsel in Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano. He is also president-elect of the Connecticut Bar Association. The views expressed here are his own and not those of the CBA.