Murdter They Decided

The District of Columbia Court of Appeals has squarely rejected the call for leniency by the Office of Disciplinary Counsel in In re Murdter – a case where the attorney failed to file briefs in five appointed criminal appeals.

Disciplinary Counsel maintains that the Board and the Hearing Committee gave disproportionate weight to “the seriousness of [respondent’s] conduct,” Martin, 67 A.3d at 1053, while undervaluing other, mitigating factors. Specifically, Disciplinary Counsel emphasizes respondent’s demonstrated cooperation with Disciplinary Counsel and commitment to change, further arguing that respondent’s clients did not suffer actual prejudice because their convictions were eventually affirmed on appeal. But, as our opinion in In re Askew, 96 A.3d 52 (D.C. 2014) (per curiam),  respondent’s disregard of client matters took on heightened significance in the context of his appointment to represent indigent appellants:

We weigh heavily the fact that Ms. Askew was appointed to represent [the appellant] under the Criminal Justice Act. . . . When a [CJA] panel attorney so egregiously fails to fulfill [her] obligation [to competently represent and zealously advocate for . . . clients], it undermines the aim of the [CJA], and reflects negatively on both this court and the legal profession. Id. at 60.

Respondent, it scarcely needs repeating, accepted and then largely ignored appointment in not one but five such appeals. And this indifference to his client obligations went hand-in-glove with disregarding multiple related orders of this court, conduct itself “seriously interfer[ing] with the administration of justice.” D.C. R. Prof. Conduct 8.4 (d)…

Disciplinary Counsel is legitimately concerned with not “punishing” attorneys who are genuinely remorseful and committed to remediation, but that concern cannot be at the expense of deterring a lawyer’s gross indifference, as exemplified here, to duties owed both clients and the court.

The Board’s report and recommendation, by contrast, appropriately balances the competing considerations.

The court imposed a sixty-day suspension followed by a period of probation.

Don’t feel too bad for the Office of Disciplinary Counsel.

A dozen of more of the staff are off in San Diego partying on bar dues. Highlights include a tour of the USS Midway Museum.

Maybe they are all on the West Coast to meet and explore ways to address their huge backlog of cases.

Or maybe not. (Mike Frisch)