Consent Agreement Moves Forward In D.C.

There is a very significant hearing committee recommendation for the District of Columbia Court of Appeals to accept consent discipline of a stayed four-month suspension and unsupervised probation of eighteen months for serious neglect.

Respondent’s violations are serious. He intentionally neglected the cases of multiple clients over a four-year period. As a result of his misconduct, all of the clients lost their claims— two by summary judgment that Respondent did not oppose, one by dismissal as a sanction for Respondent’s failure to respond to discovery orders, and two after Respondent let the applicable statute of limitations expire. Further, two of Respondent’s clients were sanctioned because of his misconduct.

Notably (and do not blame the Assistant Bar Counsel who negotiated the consent) the Bar Counsel investigation began way back in 2006.

This worked to the benefit of the accused attorney by allowing him to demonstrate rehabilitation from his alcoholism and a sustained track record of incident-free behavior.

He had left practice in 2006 but began a West Virginia practice with a law firm in 2008.

There have been no post-2008 bar complaints,

The crucial finding

At the same time, Respondent has no disciplinary record, cooperated fully with Bar Counsel, expressed remorse, accepted responsibility for his actions, and has practiced law for nine years without any new disciplinary complaints. We thus find that the sanction of a four-month suspension is justified and not unduly lenient. We also agree that mitigation of the sanction pursuant to Kersey based on Respondent’s alcohol dependence is justified, and that the suspension should be stayed in favor of an 18-month period of unsupervised probation, with the conditions to which the parties stipulated.

Under Kersey, a period of suspension may be stayed in favor of probation if the respondent can prove (1) by clear and convincing evidence, that he suffered from a disability or addiction at the time of the misconduct; (2) by a preponderance of the evidence, that his disability or addiction substantially caused the misconduct; and (3) by clear and convincing evidence, that he now is substantially rehabilitated.

The parties have stipulated that Respondent has satisfied the burden of proof with respect to all three Kersey elements.

This is quite significant because the Board on Professional Responsibility has been (to put it mildly) hostile to accepting stipulations in matters of potential dispute in consent matters.

This case was an entirely appropriate use of discretion and resources, particularly in light of the fact that the misconduct took place nine years ago and was promptly reported to Bar Counsel.

You cannot have a workable system of consent discipline if you don’t trust Bar Counsel (by whatever name) to exercise discretion and judgment.

Hope the Court of Appeals agrees with me.

The case is In re Athanasios Baskedis. It can be found at this link. (Mike Frisch)