To Tell The Truth

A District of Columbia Hearing Committee has recommended that two attorneys be suspended with proof of fitness for misconduct in a medical malpractice case. The committee proposes an 18-month suspension for one of the attorneys and a two-year suspension for the other.

The committe’s analysis of the evidence and violations is generally solid. They find some charges proven by clear and convincing evidence and reject other alleged rule violations.

I do part company with them on their sanctions analysis.

The attorneys undertook the case in an area where they had no expertise and performed in an incompetent manner.

After they were discharged by the clients, they made numerous and extensive false representations to the clients and the court in an attempt to collect an unreasonable fee.

They refused to acknowledge any misconduct.

The hearing committee found that the Rule 3.3 and 8.4(c) violations involved seriously dishonest conduct.

Bar Counsel sought disbarment, a sanction the hearing committee found unwarranted

Bar Counsel has recommended disbarment. The Hearing Committee finds, however, that disbarment in this case would be out of line with the sanctions imposed in prior cases. Despite the seriousness of Respondents’ dishonest conduct, the Hearing Committee does not find that their conduct rises to the level of “flagrant” dishonesty.

Here’s the rub.

One of the two attorneys has already been disbarred once (in 1984) and had secured reinstatement in 1994. Since his reinstatement, he was publicly censured by the Court of Appeals and placed on probation for post-reinstatement ethical violations.

Apparently, the hearing committee did not consider the fact that the attorney has already been disbarred as a significantly aggravating factor. To put it mildly, I think that fact is highly relevant to the disposition of this matter.

If you’ve been disbarred once and engage in serious dishonest conduct after being reinstated, you get disbarred again. And reinstatement  should only be granted after careful and mature deliberation.

There is another interesting aspect to the case.

Bar Counsel charged that the formerly-disbarred attorney violated probation by failing to tell clients that he was on disciplinary probation. The hearing committee rejected those charges, finding that the probation order did not clearly require him to do so.

Here’s the provision

Respondent shall promptly inform his clients that he has been placed on probation for failing to deposit client funds in an escrow account.

The clients retained the attorney after that condition was imposed. The hearing committee interprets the provision as requiring that he tell his present clients of the probation as of the date of the court’s order but not future clients like the ones here.

I don’t expect that interpretation to be upheld.

The case is In re Bettis (the once-disbarred) and McClure and can be accessed at this link. (Mike Frisch)