A tort or a law can be "malum in se" or "malum prohibitem".
The Latin term malum in se translates roughly to "wrong in itself," or "evil in itself." In the law, the phrase is used to refer to someone's actions that are inherently wrong, or sinful by nature, regardless of regulations of laws. This is different from malum prohibitum, which refers to an act that is only wrong because it is prohibited by law. To explore this concept, consider the following malum in se definition.
An act that is wrong or evil by nature, regardless of statute or law.
What is Malum in Se
Malum in se refers to certain acts that society judges as being inherently wrong, or even evil, whether or not laws have been enacted regarding them. Examples of malum in se acts include such things as rape, murder, child abuse, and theft. Such actions violate humanity's natural, or moral principles.
By contrast, society has created laws and regulations to govern certain activities, and a violation of one of these is considered malum prohibitum, which is wrong because it is prohibited by law. For instance, a person driving 90 mph down a roadway on which the speed limit has been set at 40 mph has committed an act that is malum prohibitum. Most people wouldn't consider this to be a morally reprehensible act, but it is still illegal.
Intent as a Factor in Malum in Se
The differentiation by the law in malum in se and malum prohibitum acts is whether or not intent is a required factor for prosecution. This may seem a bit confusing, but if someone is accused of committing a crime malum in se – which is something that is intrinsically bad or morally wrong, rather than prohibited by law – he or she must have had intent to do the illegal thing.
On the other hand, a person who commits a malum prohibitum act is strictly liable by simply violating the law, regardless of intent.
Malum Prohibitum
An act which is immoral because it is illegal; not necessarily illegal because it is immoral.
See, e.g. United States v. Bajakajian, 524 U.S. 321 (1998).
UNITED STATES, Petitioner, v. Hosep Krikor BAJAKAJIAN.
Some laws and torts require proving intent, as one must have the requisite intent to violate the tort or law.
If the attorney did as the OP alleged, was her action driven by a specific intent to violate the existing order, or was it done my mere mistake?
If the money was purloined, was it done so intentionally or accidentally?
It would be far simpler to pursue it in small claims.
There might be the possibility to settle the matter before the superior Court simply agreeing to offset the amount alleged to have been taken inappropriately.
