When A Lawyer Defaults On Bar Charges
The Maryland Court of Appeals has disbarred an attorney for misconduct described in the headnote to the case
The Court of Appeals disbarred attorney who gave incorrect advice to a client in an immigration matter, told the client that he did not need to appear at an immigration hearing and then did not appear himself (with the result the client was ordered in absentia removed from the United States), accepted payment from the client, and then stopped responding to all inquiries from the client as to the status of the case. Respondent also did not respond to lawful inquiries from Bar Counsel for information concerning the complaint.
The case is particularly interesting in its discussion of the fact finding below.
The attorney had defaulted but the hearing judge was nonetheless unimpressed by the evidence and the “casualness” of Bar Counsel’s presentation.
Bar counsel, on appeal, contended that the trial judge had impeoperly made credibility findings that were contradicted by the default.
The court noted that the default was “neglected, but not ignored” and went on to find that the violations charged by Bar Counsel had been established by the default.
Judge McDonald concurred
This is one of those cases where no good deed goes unpunished. Bar Counsel attempts to put a face on a cold record of default and the defaulter prevails. The hearing judge conscientiously sifts the evidence provided, making the credibility determinations on which we normally rely, and that effort is found unnecessary. I concur in the Court’s disposition and write simply to make a suggestion.
The Majority opinion provides, in footnotes 17 and 26, some helpful advice to Bar Counsel and hearing judges on how to deal with situations, not uncommon, in which an attorney accused of misconduct fails to respond to the charges. Perhaps it is worth incorporating some of that good advice in our rules or in the standard referral order to hearing judges to make it more readily accessible than a Westlaw search
Footnote 26 suggests that the presentation of evidence may be problematic in a default situation and concludes
Although Bar Counsel may be correct that the evidentiary hearing may be important sometimes in putting a “face” on a complaint, as well as developing the effect of attorney misconduct on clients, such hearings may do more harm than good ultimately, as appears to have been the case here, by attempting to apply too many additional layers of gloss to already-established facts, so as to obscure and bring into doubt the clarity of the thorough and well-pleaded facts from a PDRA [charging document].
As we have noted in the past, one of the most significant peoblems in the D.C. disciplinary system is its hostility to any concept of default.
Literally, an accused attorney can entirely fail to participate and reasonably hope that the BPR will find him his defense, excuse and/or justification for the misconduct. (Mike Frisch)