5 1/2 Year D.C. Bar Counsel “Investigation” Leads to Probation That Need Not Be Disclosed To Clients
The District of Columbia Court of Appeals has ordered a stayed suspension of 30 days with probationary conditions of an attorney who had breached the duty of confidentiality and engaged in related violations.
The attorney’s probationary status need not be disclosed to clients
The Board concluded that respondent should not be required to report his probation to current or new clients. See D.C. Bar R. XI, § 3 (a)(7). The Board did, however, indicate that if Disciplinary Counsel determines in accordance with Board Rule 18.3 that respondent has violated any term or condition of his probation, Disciplinary Counsel may file with the court a verified motion to show cause why the matter should not be referred to a Hearing Committee for an evidentiary hearing.
The misconduct related to a motion to withdraw as counsel in civil litigation.
From the hearing committee report
Respondent’s Motion to Withdraw as Counsel and the attached letter made allegations about [the client] Ms. Butler based on information obtained during the representation, and revealed aspects of her settlement strategy, among other disclosures. Confidential Appendix, ¶ 7. In his Motion for Reconsideration, Respondent made additional accusations that implicitly reflected communications between them, and described at least one communication between them. See id., ¶ 14. Respondent also attached to his Motion five e-mails from Ms. Butler to him.
At the disciplinary hearing
Throughout the hearing, Bar Counsel amply evinced its exasperation with Respondent. And at times, the Hearing Committee found it necessary to require Respondent to move forward with his examination, testimony and arguments more pertinently and efficiently and with less digression and repetition. However, the Hearing Committee, unlike Bar Counsel, does not find the pre-hearing motions practice, the three-hour hearing on motions and other matters, or Respondent’s several instances of disorganization and lack of focus to be particularly unusual in litigation (let alone abusive) or to have caused any undue delay in or extension of the hearing itself or the overall disposition of this matter. (There is no suggestion that Respondent was in any way responsible for the extraordinary – and unexplained – five-and-one-half-year hiatus between the initial letter of inquiry and the filing of the Specification of Charges, after which the matter then moved expeditiously to hearing within five-and-one-half months.)
The hearing committee criticized Bar Counsel’s use of precedent
Bar Counsel seeks a 60-day suspension and a requirement that Respondent then show his fitness to practice law before being re-admitted to the Bar. Bar Counsel has not adduced any apposite authority supporting this recommendation and such a sanction would be inconsistent with sanctions imposed in similar situations.
Although Bar Counsel relies heavily upon Gonzalez in its analysis of the Rule 1.6(a)(1) allegation, Bar Counsel Brief at 12-14, Bar Counsel ignores Gonzalez in its sanction argument. As discussed supra at 10-12, the facts in Gonzalez and in this matter are remarkably similar – indeed, nearly identical. With respect to the appropriate sanction, the Board determined that Gonzalez “‘had made a mistake he is not likely to make again. . . .’” Gonzalez, 773 A.2d at 1028. The Board – and, indeed, Bar Counsel also – recommended an informal admonition, and the Court of Appeals agreed.
The hearing committee did not find sufficient evidence that the attorney was presently unfit to practice
The Hearing Committee has explained above its reasons for having no serious concerns about Respondent’s fitness to practice law competently and ethically. Bar Counsel has not come close to meeting the serious doubt standard by clear and convincing evidence. Imposition of a fitness requirement would result in a backdoor suspension of uncertain and potentially unconscionable length that would be grossly inconsistent with the sanctions imposed in proceedings involving similar circumstances.
Yesterday I praised the efficiency of the BPR in promptly moving a disbarment recommendation to the court. Today, this case shows more evidence of Bar Counsel’s gross neglect of its duty to protect the public. This case took seven years total to resolve a single matter with all the fault for the delay attributable to Bar Counsel.
There is more than ample evidence that multi-year investigation of matters is the rule in D.C. rather than the exception.
Maybe they changed the name to Disciplinary Counsel to blame those “other” people for taking 5 1/2 years to “investigate” a matter that required little more than a review of court filings. (Mike Frisch)