Murdter, He Wrote (But Not the Briefs)

A District of Columbia Hearing Committee has taken the unusual step of recommending a more severe sanction than that proposed by the Office of Bar Counsel.

The matter involved an experienced attorney (with a private practice and Department of Justice background) who had seriously neglected five appointed criminal appeals. He was removed from each of the cases and held in criminal contempt in two of the cases by the Court of Appeals.

He was sentenced to a stayed jail term and unsupervised probation for the contempts.

The attorney was remorseful for the misconduct and has taken some steps  to avoid future lapses, which he attributed to his focus on pending trials.

Bar Counsel and the attorney agreed that a public censure was appropriate.

However, in light of a recent court decision, the Hearing Committee disagreed

The Court of Appeals very recently addressed very similar conduct in Askew that we are bound to follow. In Askew, the Court held that a respondent’s “substantial and intentional” neglect of a single client in a criminal appellate matter warranted a six-month suspension, with all but sixty days stayed, and a one-year probationary term. In re Askew, App. No. 13-BG-0849, 2014 WL 3744056, at *9 (D.C. July 31, 2014). In Askew, the respondent ignored multiple Court orders to file an appellate brief, and failed to turn over the client’s file to successor counsel in a timely manner, which resulted in additional delay in the case. Id. Additionally, the respondent’s appointment had been previously vacated in at least one other criminal case where she failed to file a brief or otherwise respond to a Court order. Id. at 7. The Court weighed heavily the fact that the respondent was appointed to represent an indigent defendant and that there were no mitigating circumstances that would explain the misconduct.Id. at 6.

Noting some distinguishing factors in both mitigation and aggravation, the Hearing Committee proposes the same sanction ordered in the Askew case.

The case is In re Charles Murdter and can be found at this link.

I only had two cases at Bar Counsel where the proposed sanction of a hearing committee or the Board on Professional Responsibility was more severe than I had sought.

One – In re Elliott Abrams – was infected by national politics. The other – In re Miller – was infected by bar politics.

Neither concern seems to be at play here.

The Miller case was the watershed moment of my Bar Counsel career and affected me as deeply as any case I have ever handled. My strong opposition to the blatant bar politics played by the hearing committee and BPR ended any career aspirations I might have had in the disciplinary system.

The story is briefly told in my No Stone Left Unturned piece in the Georgetown Journal of Legal Ethics under the header A Tale of Two Associates.

My loss of faith in the D.C. disciplinary system really begins with Miller. It was only by the grace of the perfect panel of the Court of Appeals (Judges Mack, Newman and Steadman) that the case was fairly resolved.

When I saw the panel on the Thursday before the oral argument, my faith in a guiding hand of Providence was somewhat restored. (Mike Frisch)