Are Consent Dispositions Gaining Favor In D.C.?
A District of Columbia Ad Hoc Hearing Committee has approved a consent 18-month suspension with six months stayed and probation for conduct that involved serious dishonesty over an extended period of time.
The committee thoughtfully considered the merits of consent disposition in a case that presented a confluence of competing factors
In sum, having carefully reviewed the agreed-upon facts in this matter, having heard from and, indeed, tested Respondent in the hearing, and fully taking into consideration the pertinent sanctions case law cited in the Petition (at 7-8), we conclude, notwithstanding the fourteen-month period of dishonesty, that the negotiated sanction is justified. See, e.g., In re Guberman, 978 A.2d 200 (D.C. 2009) (18-month suspension as substantially different discipline in a reciprocal discipline matter where the respondent misrepresented to his employer that he would file an appeal on behalf of a client and falsified filing stamps on draft court papers to make it appear that he had filed the appeal); In re Pennington, 921 A.2d 135, 139-140 (D.C. 2007) (two-year suspension with fitness as substantially different discipline in a reciprocal discipline case, where the respondent “‘conceal[ed] the true account of how she mishandled [her client’s] claims, falsif[ied] a supposed settlement of those claims with the insurer, intentionally misrepresent[ed] matters in negotiations with third-party health care providers . . . , and conceal[ed] . . . facts that might have supported lodging a professional negligence claim . . . .’”) (quoting Attorney Grievance Comm’n v. Pennington, 876 A.2d 642, 660 (Md. 2005)). We also find that the negotiated sanction is not unduly lenient.
We note that, while the Hearing Committee unanimously agrees that the sanction is justified, and not unduly lenient, the Hearing Committee members differ regarding the extent to which they believe the negotiated discipline is lenient. One Hearing Committee member believes that, while not unduly lenient, the facts in this case reasonably could have justified a harsher sanction. This member believes that Respondent’s actions, in deliberately and systematically making at least five false statements to his client over a period of 14 months regarding key actions in connection with their case that he, the Court, and others had purportedly taken but which, in fact, had not occurred, constitute very serious misconduct. Furthermore, in the Amended Petition for Negotiated Discipline, while Dr. Howard acknowledged that “Respondent’s then-untreated conditions caused neglect of his obligations to New Plaza . . . ,” Dr. Howard at the same time “. . . offered a less definitive opinion on the causal nexus between the diagnoses and Respondent’s false statements in response to New Plaza’s inquiries or his presentation of a ‘faked court complaint’ to his client.” Dr. Howard was unable to establish a nexus between the diagnosis and repeated false statements over an extended period of time. Indeed, the parties stipulated that, pursuant to the second Kersey factor, Respondent would be able to show by a preponderance of the evidence that his bipolar disorder and ADHD “substantially affected the stipulated misconduct, with the exception of the Rule 8.4(c) violation.” Petition at 9 & n.1 (emphasis added). The absence of a stipulation that Respondent’s disability affected his misconduct related to dishonesty indicates to this member that the Respondent’s condition did not prevent him from understanding that he was engaging in repeated misrepresentations; nor, by inference, did it prevent him from consideration of some form of corrective action during this extended period, all of which underscores the seriousness of the misconduct.
Conversely, the other members of the Hearing Committee believe that the negotiated discipline risks being unduly harsh. Those members note Respondent’s remorse and dedication to his personal rehabilitation, his full and voluntary reimbursement of his former client, including both restitution of legal fees and compensation for the amount the client hoped to recover in the White Star matter, and the devastating impact a suspension has on an attorney’s financial circumstances, professional stature, and future professional and financial prospects. Unlike other situations in which long suspensions are justified, those members of the Hearing Committee believe that the Respondent is well on his way already to being rehabilitated and accordingly that the public’s safety no longer seems to be a concern.
The case is In re Richard Bianco and can be accessed at this link.
The disciplinary investigation began in the spring of 2014.
If the court approves this consent (as I fervently hope it does), it sends a strong signal to the disciplinary system that cases where fair-minded people may differ are susceptible to meaningful negotiation.
Here, a case with Kersey issues and protracted dishonesty can get resolved in a responsible split-the-baby manner that offers a measure of public protection and gets done in two years rather than the usual decade.
Bravo! (Mike Frisch)