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Be careful to raise no new issues at your probation hearings

| Dec 6, 2017 | Criminal Defense

If you end up being convicted of a crime, there’s a fair chance that part of your sentence will involve probation. Probation allows you to be released into the community instead of serving all of your sentence in jail — but you must meet certain conditions. If you fail to meet any of the conditions, your probation could be extended or revoked.

A Wauwatosa lawyer recently learned that misunderstanding the conditions of your probation is not an excuse. He was convicted just over a year ago of three counts of theft in a business setting, all misdemeanors. The charges related to his handling of an estate.

The lawyer, 57, was sentenced to 30 days in jail and 18 months’ probation. As a condition of that probation, a Waukesha County circuit judge also ordered him not to act as a fiduciary in any case.

A fiduciary is a person who is in a relationship of trust with their clients or other beneficiaries. They have a legal and ethical duty to meet the highest standards of loyalty and care. They must act with complete candor, make prudent choices, and put the client’s interests ahead of their own. They must avoid conflicts of interest and even the appearance of impropriety, and they must act in all situations with good faith and honesty.

Examples of fiduciaries include trustees, guardians, corporate directors and certain types of financial advisors. Courts have sometimes held that clergy members, physicians and other licensed professionals are fiduciaries. Lawyers, by their nature, are fiduciaries.

Unfortunately for this particular lawyer, he appears to have misunderstood that. He seems to have been under the impression that lawyers only act as fiduciaries when they handle client money or trust accounts. That is not the case; lawyers are fiduciaries in regards to all of their clients.

That’s why the lawyer was in for a surprise when he came to court expecting his 18 months of probation to be ended, as had been recommended by the Wisconsin Department of Corrections. Instead, the lawyer found it being extended by an additional year.

The lawyer had continued to practice law during his probation. He tried to explain to the judge that the legal work he had taken on had not involved handling any money or trust accounts. The judge wouldn’t have it. He pointed out that any work performed by a lawyer involves fiduciary responsibilities.

If you’re on probation, it’s crucial for you to fully understand its terms. It’s also important to have representation at any hearing in the criminal courts. Having your own attorney can keep you from making mistakes that compound your charges or sentence.

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