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Imagine that you are a general counsel who’s been convicted of a criminal misdemeanor related to fraud, or that you were fired for a serious ethics violation, or that a federal agency has ordered you not to practice before it nor serve as a corporate officer for the next five years because of misconduct. Could discipline by a state bar committee be far behind? Well, yes, it could be so far behind that it’s not even remotely likely to happen. Corpcounsel.com this week examined three high profile cases of general counsel who broke the rules and lost their jobs. But not one of the three lost the license to practice law, or was even publicly reprimanded by a state bar. Consider these cases: * Howard Udell, currently in the news as he appeals his government-imposed exclusion from U.S. healthcare work, was the general counsel of Purdue Pharma in Connecticut. In 2007 he pled guilty to a criminal misdemeanor of misbranding related to his company’s marketing of the addictive drug Oxycontin. A few months later the Department of Health and Human Services excluded him from working for any company that has government contracts, such as Medicare, for 12 years. Even though Udell pled guilty to a crime, the state bar of Connecticut has no public record of disciplinary action against him. And he still practices law. Today he operates a solo legal office in Westport, Connecticut, while his appeal is pending before the Circuit Court of Appeals in Washington D.C. He has repeatedly declined comment. * Scott Storms was chief legal officer of the Indiana Utility Regulatory Commission in 2010 when he made several rulings and recommendations that benefited Duke Energy Indiana. Unfortunately, at the same time he was applying for, and accepting, a job as assistant general counsel with Duke. When consumers found out about the conflict of interest and became outraged, Duke fired him. The Indiana State Ethics Commission in May ruled that Storms was guilty of three ethics violations. Yet the state bar of Indiana has no record of any public disciplinary action against Storms. His attorney, Thomas Farlow of Frost Brown Todd in Indianapolis, says Storms is currently unemployed as he appeals the ethics ruling in county superior court. * In March 2010 Jay Lapine, the ex-general counsel of McKesson-Hboc, Inc., was stripped of his right to practice before the Securities and Exchange Commission for five years and ordered to pay a $60,000 penalty. The punishment was part of a civil settlement resolving charges that he participated in financial reporting fraud; he neither confirmed nor denied the charges. An earlier criminal trial acquitted him. Lapine was licensed in Texas and Ohio at the time, but neither state bar imposed public disciplinary action. Today Lapine serves as in-house counsel at the U.S. headquarters of Intralot, Inc., in Duluth, Georgia. The company is one of the largest sportsbook and lottery services providers in the world. State bar officials cannot discuss individual cases that have not resulted in public discipline. But they can discuss their disciplinary process in general. Being convicted of a criminal misdemeanor would not necessarily lead to discipline in the state of Connecticut, according to Patricia King, chief disciplinary counsel for the state bar there. She explains that Connecticut, as most states have, has adopted some form of the American Bar Association’s “model rules for lawyer disciplinary enforcement.” Under those rules, lawyers can be disciplined for “serious crimes” and misappropriating clients’ funds. The ABA defines “serious crimes” as any felony or “lesser crime that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer;” or any crime that “involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft, or an attempt, conspiracy or solicitation of another to commit a ‘serious crime.’ ” In other words, unless a lawyer has been convicted of a serious felony or absconded with his client’s money, there’s a lot of discretion. Michael Bowler, counsel to the state bar grievance committee, says for a lawyer to be disciplined in Connecticut, as in most states, there must be clear and convincing evidence of misconduct. “Every case is taken on its own merits,” Bowler explains. “There is no hard and fast rule.” He said some states impose automatic disbarment on a lawyer found guilty of a felony, but Connecticut doesn’t. Instead, he says the states takes a multi-tiered approach that involves a review of the lawyer’s conduct, a further investigation if needed, then a decision by a local panel on whether to send it to the grievance committee, which can bring charges and send it to the state’s highest court for a final decision and, if needed, a disciplinary penalty. If an investigation does not lead to charges, then the bar does not make its probe public, he says. He adds that on any investigating panel, at least one-third of its members are not lawyers and clearly represent the public. The ABA’s model rules allow for several types of discipline, including from the most severe to the least: disbarment, suspension not in excess of three years, probation with supervision for up to four years, public reprimand, and private admonition. So just because a case hasn’t been publicly decided doesn’t necessarily mean that it wasn’t investigated, or that some private warning wasn’t issued. Or still could be. The model rules say there is no statute of limitations on disciplining lawyer misconduct. But GCs needn’t worry too much. Neither Bowler, nor officials at state bars in Texas and Indiana, can recall a general counsel ever being publicly disciplined in their state. “It would be highly unusual,” Bowler concedes. “Not because they never do anything wrong, but for the same reason that lawyers at big law firms are rarely disciplined. There are just so many procedural and ethical safeguards built into their practice.”

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