All Aboard For A Lenient And Late-Blooming Sanction

A District of Columbia Hearing Committee has recommended that an attorney be informally admonished

The charge is that Jenkins included in files to be produced to her employer’s Office of Inspector General (OIG), three engagement letters that had been backdated by outside counsel at her request, without disclosing to the OIG that the letters, and the date of her signature on each letter, were backdated…The fact of this backdating is not in dispute. Respondent argues that the backdating was immaterial.

The attorney has practiced for 39 years without prior discipline. She had moved from the Manatt Phelps law firm to serve as associate general counsel for litigation to Amtrak.

She had submitted backdated engagement letters between the law firm and Amtrak to Amtrak’s OIG.

The engagement letters were not a ministerial matter to the OIG, as Jenkins believed. See Tr. 48 (“I believe that [obtaining the engagement letters] was a ministerial action that I was taking to make sure that the files were in good order, in accordance with what I believe the OIG wanted”); see also 40, 42, 88, 105, 109. The Legal Department either had the controls in place that the OIG wanted or it did not. As the OIG noted in its referral to Disciplinary Counsel, “[t]he backdating made it appear that the retainer letters were prepared and obtained when each engagement started, when in fact they were prepared later in response to the Amtrak OIG investigation.” Ex. 24, p.3.

The record clearly demonstrates that Jenkins intended to conceal from the OIG the fact that the engagement letters were not written at the time that she engaged Manatt on these matters. She knew that the Legal Department had recorded the date the letters were received. If the backdating  would cause confusion, the date stamped transmittal letter would show that. The best inference to be drawn from the record is that Jenkins intended to conceal the backdating from the OIG. Her efforts to avoid having the backdated letters date-stamped reinforces the inference that she intended that the record reflect what the OIG wanted. We find that the record contains clear and convincing evidence that Jenkins intended to mislead the OIG to conclude that she had obtained individual engagement letters for each of her matters at the beginning of the engagement. She knew the OIG wanted the Legal Department to obtain separate letters in each matter. She knew that such letters did not exist for each of her matters. Her belief that the backdating was a ministerial matter, Tr. 109, was a fundamental error. The backdated letters created a false picture of how the Legal Department and Respondent were managing outside counsel—precisely what the OIG inquiry was intended to assess. Her professed inexperience with public sector Inspectors General, Tr. 49, 97 (Jenkins), does not excuse the backdating.

 On sanction

Considering these factors, we find that the record includes a basis for mitigation of the sanction. First, this appears to be the only disciplinary proceeding in Jenkins’s 39-year legal career. This incident seems to be the only instance of backdating in that career. Second, California, the jurisdiction where Jenkins practices, chose to take no action against her. Third, Jenkins cooperated fully with Disciplinary Counsel in the presentation of this matter, including stipulating to all the essential facts. Fourth, the backdating involved no potential for financial gain for Jenkins. Fifth, no critical consequences resulted from Respondent’s backdating the documents, and her client, Amtrak, was not harmed materially by her single rule violation. Although Jenkins has not conceded that the backdating was wrong, she acknowledged that in retrospect the dates could have been handled in another way.

 The case is In re Marilyn Jenkins, Bar Docket No. 2010- D382. The report can be found at this link.

The docket number means that the case – where the facts were apparently not in dispute – has already been in the disciplinary system for six years.

The case was prosecuted by Hamilton P. Fox III, which (I assume) means that he inherited the case and that someone else at the Office of Disciplinary Counsel is responsible for the delay.

Zoe Tillman reported that the attorney had previously rejected an informal admonition. (Mike Frisch)