Legal Ethics

'Finders Keepers, Losers Weepers' Doesn't Work For Lawyers

It is crucial for lawyers to be ever-vigilant against even the most fleeting lapse of ethical judgment -- including stealing other people's money.

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Today’s ethics quiz: You are waiting in the drive-through teller line at your local bank on a Friday afternoon.  The driver in the car in front of you is cashing his paycheck.  So he puts the check and his driver’s license into the transaction tube and whoosh, he sends it off to the drive-through teller.  Being distracted by a phone call, the driver then pulls off as the teller is sending back the transaction tube.  As a result, when you pull up in your white BMW to conduct your transaction, you find a tube containing $1,185.65 in cash and the other driver’s license.  In this case, the ethical thing for an attorney and officer of the court to do is:

(a)        Send the tube back to the teller, informing him that the driver of the car ahead pulled off without completing their transaction;

(b)        Take the money and the driver’s license and then drive those items to the other driver’s home (after all, you already know his address); or

(c)         Remove the dollar bills from the tube, but leave behind the 65 cents and the driver’s license, and then drive off with your found money.

If you answered (c), then you might be the New Jersey lawyer who was censured in both New Jersey and New York for committing the crime of theft of mislaid property.  But you are probably thinking, “Wait a minute!  In third grade, I learned that finders keepers, losers weepers.  Are you telling me that this is no longer valid law?”

Of course not.  I’m telling you that “finders keepers, losers weepers” was never valid law and has the same force and effect as “whoever smelt it, dealt it.”  In fact, the latter actually has some basis in fact; if not in law, ethics, and morality.  But the idea that finding something makes it yours has never been a valid legal principle (excluding, of course, the “discovery” of the New World by European explorers).

Fortunately, in the case at bar, the wrong was not been left uncorrected for half a millennia.  Because it only took two weeks for bank officials to review the surveillance tape and identify the driver of the white BMW as attorney Marc Bruce Schram.  The bank contacted the police, who in turn, invited Schram down to the station to have a little chat.  To his credit, Schram admitted that he had taken the money, but explained that he had done so in a “momentary lapse of reason”; a moment that had continued for two weeks until he had been caught.

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Schram was able to avoid criminal prosecution by completing a pretrial intervention program and paying full restitution to the victim.  Furthermore, as a result of demonstrating remorse and having no prior history of discipline in 30 years as a member of the New Jersey bar, the Supreme Court of New Jersey merely censured Schram on July 7, 2017.  And about a year later, on June 20, 2018, the Supreme Court of New York imposed reciprocal discipline in the form of a public censure.

So what lessons can we the rest of us take from this unusual case?

Lesson #1:  Banks have cameras installed everywhere.  Therefore, it makes a lot of sense to avoid the following — robbing them, robbing other patrons outside the bank, taking money that does not belong to you, littering on the sidewalk outside of the bank, etc.

Lesson #2:  Move to the Garden State.  Sure, such a move will require you to actually live in New Jersey, but it will also virtually guarantee that you never get disbarred, unless, of course, you participate in the closing of a bridge to get revenge on your political rivals.  Because if you can drive off in your white BMW after stealing a working man’s paycheck and only get a censure (which is Latin for, “next time, take the change too, fool”), you’re going to have to practically shoot someone to actually get a suspension (and only then, if you hit them in the upper body).

Lesson #3:  Ethical lapses can happen to good people as well.  Up until that point, Schram had avoided ethical problems for three decades as a lawyer.  As a result, it’s highly unlikely that he made it a habit of playing footloose and fancy free with his legal and ethical duties.  Otherwise, he would have been caught (or elected Governor) years earlier.  Instead, we have an otherwise ethical lawyer who got caught off-guard by a surprising event and had a momentary lapse of reason.

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And for this reason, it is crucial for lawyers to be ever-vigilant against even the most fleeting lapse of ethical judgment.  And failing that, lawyers should use a mobile banking app on their phone that will allow them to avoid the drive-through teller in the first place.  After all, no one but bank employees (and an occasional bank robber) should be going to the actual bank in 2018.  That is just plain wrong.

Sean Carter is a legal humorist and the founder of Mesa CLE, a company devoted to solid legal continuing education with a healthy dose of laughter.  Each year, he presents more than 100 CLE programs for law firms and bar associations.  When not crisscrossing the country telling jokes to lawyers, he lives in Mesa, Arizona, with his wife and four sons.

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