Regular readers know that two of my favorite topics are:
- (1) the duty of competence; and,
- (2) my Was That Wrong column.
Well, like peanut butter & chocolate in a Reese’s cup, it seems that competence & Was That Wrong have finally joined forces to bring me even greater enjoyment in unison than each does on its own.
- In 2014, the lawyer’s license was suspended as a result of trust account mismanagement. He still owes about $50,000 as a result of that event
- The lawyer demanded $50,000 from the bank
- The demand note instructed the teller to ““Count to 500, 1 Mississippi, 2 Mississippi, 3 Mississippi etc. etc. etc. before you call police.”
The final tidbit is where competence comes in. Is that competent bank robbing?
Now, you might argue, “but Mike, Rule 1.1’s duty of competence doesn’t apply to a lawyer who is robbing a bank!” In the words of the inimitable Lee Corso . . .
Take a look at Rule 5.7. Basically, the rule makes lawyers subject to all the other rules when they are providing “law-related services.”
Channeling my inner Dwight Schrute: “question: is robbing a bank to pay back trust funds a law-related service?” For entertainment purposes, let’s say “answer: yes!” Thus, Rule 1.1 applies.
With that having been established, the question becomes whether “count to Mississippi 500 before you hit the alarm” satisfies the duty of competence. I don’t think so. Here’s why.
First, 500 is way too high. If I know anything from movies, it’s that tellers hit the alarm right befote the robber is out the door…….but only if they haven’t already sneaky hit it while pretending not to know how to open the drawer!
The robber had 5 Mississippi max.
Next, the critical fact here is how the lawyer phrased the note: he instructed the teller to say the number, then “Mississippi.” Wrong construct.
You see, everyone knows that when rushing the quarterback in touch football, it takes far longer to count “Mississippi, number” than it does “number, Mississippi.” That’s how I always sacked my brother . . . “1 miss, 2 mis, 3 mi” and the rush was on.
Meanwhile, when I had the ball, I made him count “Mississippi 1, Mississippi 2, Mississippi 3.” For whatever reason, in that construct, would-be tacklers tend to enunciate “Mississippi” longer than in the reverse construct, thereby giving the QB more time to pick them apart.
In conclusion, the lawyer failed to ensure maximum getaway time by failing to instruct the clerk to use the slowest Mississippi construct possible. Ergo, violation of the duty of competence.
And, yes. I suspect this lawyer will find his way into Was That Wrong.
P.S. stories about bank robberies always remind me of the Fun Lovin’ Criminals.