finding that fees paid for satisfactory services to disbarred lawyer not considered as loss; argument that no client would have paid any money to known disbarred lawyer rejected; complaints of dissatisfied clients alone do not provide basis for reasonable estimate; government must prove the complaints are bona fide
How later courts described this case
- finding that fees paid for satisfactory services to disbarred lawyer not considered as loss; argument that no client would have paid any money to known disbarred lawyer rejected; complaints of dissatisfied clients alone do not provide basis for reasonable estimate; government must prove the complaints are bona fide
- noting that a victim who contracts to have a building constructed “according to certain specifications” and receives “the services for which he bargained” sustains no loss “despite the fact that he has received them from a person who was not legally authorized to offer them”; Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 244, 129 N.E. 889, 891 (1921) (Cardozo, J.) (explaining that doctrine of substantial performance is available only to “the transgressor whose default is unintentional and trivial”; by contrast, “[t]he willful transgressor must accept the penalty of his transgression. For him there is no occasion to mitigate the rigor of implied conditions.”) (citations omitted)
- holding that clients who obtain satisfactory services have received something of value, while dissatisfied clients have not
- “[U]nsubstantiated complaints voiced by clients only after they have learned of [a] defendant’s wrongdoing and their possible right to restitution are unreliable at best, and inherently suspect. In order to render . . . the estimate a reasonable one . . . the government must demonstrate and the district court must find that the complaints on which it is based are bona fide and can reasonably support a loss determination.”
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge,
concurring.
I concur in the majority opinion but write separately to emphasize several aspects of the case. The amount paid by Maurello’s fraud victims who indicated dissatisfaction with his services represents to this judge a good initial measure of the degree of “loss” involved by reason of this deceitful and unconscionable conduct by a disbarred lawyer. The “value” of legal services is hard to gauge by laymen clients just as the “measure of harm” to these “clients” is difficult to assay. It is also a serious challenge to ascertain to what extent Maurello’s services may have benefitted the victims or “clients” who did not complain. A qualified and licensed attorney may have done a better job for less money, or it may be that Maurello’s services were actually inadequate, unknown to his “client.” Upon the remand, I would emphasize that the district court must only determine whether the dissatisfied “clients” or victims have “a reasonable basis in fact” for their professed feeling of having been shortchanged by Maurello.
I am disposed to concur, not altogether enthusiastically, with my brothers in their interpretation of United States v. Kopp, 951 F.2d 521 (3d Cir.1991), and United States v. Badaracco, 954 F.2d 928 (3d Cir.1992), in assessing fraud loss under the guidelines. I find it difficult, however, to find a good analogy between the services of an unlicensed contractor in building a structure, and the services of a disbarred lawyer in handling a domestic relations case. Thus, I do not find United States v. Schneider, 930 F.2d 555 (7th Cir.1991), particularly relevant.
I would also emphasize that the district court is “free to reconsider on remand” whether an upward departure is “appropriate” in light of all the circumstances.