Isn’t That Special?

A District of Columbia Hearing Committee recently filed a report and recommendation for misconduct in two immigration matters.

The committee proposes a stayed 30-day suspension and probation for two years.

The lengthy and exhaustively detailed report raises a number of points worthy of mention.

First, the case was prosecuted by a Special Bar Counsel, a former member of the Board on Professional Responsibility.

While there have been prior instances of appointment of special bar counsel when the entire Bar Counsel office was recused, I believe this is first such case that actually got prosecuted.

Second, there was an extensive motions practice.

The charges alleged that the misconduct in one count pled in the alternative that either Maryland or D.C. rules applied. The special bar counsel was required to elect a single set of rules and chose Maryland.

I believe that this forced election brings an entirely unnecessary proceduralism to a bar discipline matter.

If either set of rules is violated, discipline follows. Sometimes the proper application of Rule 8.5 depends on the evidence. If you can plead in the alternative in civil practice, surely the more relaxed bar rules permit the practice.

Third, the Maryland disciplinary authorities had reprimanded the attorney for some of the conduct in one of the matters.

The hearing committee found that this action did not preclude findings of misconduct here.

Respondent agreed to be reprimanded by the AGCM for violating MLRPC 8.4(d) in the Minchala matter when the AGCM had under consideration only the basic facts relating to Respondent’s lack of competence and diligence. The same facts were proved before the Hearing Committee by Special Bar Counsel, and the same conclusion follows: Respondent violated MLRPC 8.4(d). It only adds to the seriousness of Respondent’s violation of MLRPC 8.4(d) that Special Bar Counsel has also provided clear and convincing evidence of Respondent’s violation of MLRPC 1.15 in mishandling Mr. Minchala’s advance fee payments, and Respondent’s causing a waste of judicial resources by forcing Mr. Bloom to file a Lozada motion in order to obtain an extension of time to file Mr. Minchala’s appeal with the BIA. (citations to record omitted)

As to the merits, the committee found that his response to a missed deadline was dishonest

 In considering Respondent’s conduct in relation to the requirements of MLRPC 8.4(c), the Hearing Committee asked itself one very simple question: “What should an honest lawyer do upon realizing, as Respondent did on June 23, 2011, that the attorney missed an important court filing deadline?”  The answer is equally simple: an honest lawyer must promptly inform the client of the omission, and discuss with the client the means for dealing with the problem caused by the lawyer’s error. Yet that is precisely what Respondent did not do in the case of Mr. Minchala. Instead, Respondent concocted a letter based on an unsubstantiated hope that somehow Mr. Minchala had hired a different attorney, and then did nothing further until Respondent was confronted with his dereliction by Mr. Minchala in February, 2012.

Special Bar Counsel had sought disbarment for misappropriation. The committee found only commingling and considered a number of mitigating factors.

If no mitigating factors were involved here, the combined seriousness of Respondent’s ethics violations would warrant a six-month suspension, as they did in [the prior] Lopes [case]. However, because the Hearing Committee has found that Kersey mitigation is applicable to Respondent’s misconduct in his representation of Ms. Seminiano, because of Respondent’s many years of practicing law without any ethics violations other than the instant misconduct, and because of Respondent’s record of professional involvement and pro bono service, the Hearing Committee is recommending only a 30-day suspension, stayed in favor of a two-year period of probation on conditions calculated to protect the public but which do not place an undue burden on Respondent.

The case is In re Laurence F. Johnson and can be found at this link. (Mike Frisch)