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Appellate Law
: Appellate Law and PracticeCA1: preponderance of evidence constitutionally okay in attorney discipline
By S. COTUS
In Re: Malcolm J. Barach, No. 06-8033 suspends a lawyer for two years based on the Massachusetts? SJC?s suspension for failing to keep adequate records regarding client funds. I guess the First Circuit sets out the framework litigating these issues. The attorney appeared pro se (hint: don?t do that). He argued that Massachusetts?s burden for imposing discipline was too low (preponderance of the evidence), and its lowness was unconstitutional. In essence, the constitution requires ?clear and convincing? proof. The First says that there is nothing wrong with that.
Strangely, when deciding whether a government attorney committed misconduct in the course of sending a poor person to jail, the First seems to apply a higher standard.
Full post as published by Appellate Law and Practice on August 28, 2008 (boomark / email).
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