Agreed Sanction Too Harsh

An ad hoc District of Columbia Hearing Committee accepted (with one exception) a stipulation of misconduct reached by an accused attorney and the Office of Bar Counsel.

The committee found that an attorney’s late-filed appellate brief without the required appendix and failure to advise his client of the resulting dismissal violated a number of rules. However, the committee rejected the stipulation that the attorney engaged in conduct that seriously interfered with the administration of justice.

The committee rejected the agreed sanction as unduly harsh

Respondent has established substantial mitigation, which is uncontested by Bar Counsel. He testified credibly that he has significantly reduced his caseload and taken steps to address coverage of his cases if he has health problems. He cooperated in these disciplinary proceedings, including entering into stipulations as to the facts and violations, and agreed to a severe disciplinary sanction. He also credibly expressed his remorse, testifying that he “felt really bad” about his failure to properly represent his client.

Given the above, we find the six-month suspension stipulated by the parties is unduly harsh and inconsistent with the requirement to recommend a consistent standard for comparable misconduct under D.C. Bar R. XI, § 9(h)(1). We instead recommend a 30-day suspension, which more closely meets the consistency requirement, is commensurate with the seriousness of the misconduct and gives appropriate weight to the mitigating factors. We further recommend that the suspension be stayed on condition that Respondent is placed on one year of supervised probation, with the conditions recommended by the parties…

We find that notwithstanding the parties’ stipulation, the record lacks the necessary clear and convincing evidence that casts a serious doubt on Respondent’s continuing fitness to practice, for the following reasons. First, Bar Counsel did not even brief the fitness question. The Hearing Committee is hard-pressed to find, in the absence of Bar Counsel’s explanation or rationale for recommending a fitness condition, that Bar Counsel has established clear and convincing evidence that Respondent poses such a risk to the public that a fitness condition is necessary.

Second, the evidence itself does not suggest, let alone show by clear and convincing evidence, that Respondent will engage in similar conduct in the future. The evidence is to the contrary. Respondent has acknowledged the misconduct, sincerely expressed his remorse, and taken steps to address the problems that led to the misconduct. Moreover, while the Hearing Committee recognizes that the fitness determination is individual, and does not rest on a comparative analysis, Cater, 887 A.2d at 21, the injustice of imposing a fitness requirement on this record, as compared to Askew, where no fitness requirement was imposed, is self-evident.

The case is In re Douglas Evans and can be accessed at this link. (Mike Frisch)