D.C. Court: Disciplinary Counsel’s Delay Was Massive, Inexcusable And Irrelevant

The District of Columbia Court of Appeals (Senior Judge Reid as author) has disbarred an attorney and rejected several contrary contentions

Mr. Saint-Louis challenges the Report and Recommendation of the Board on the grounds that: (1) Bar Counsel (now Disciplinary Counsel) failed to present clear and convincing evidence of ethical misconduct; (2) disbarment is inappropriate because Mr. Saint-Louis did not intentionally misappropriate client funds or engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and (3) Disciplinary Counsel’s multi-year delay in prosecuting the case against him was inexcusable and prejudicial. For the reasons set forth below, we agree with the Board’s recommended sanction.

The court summarized the evidence – involving events that took place in 2004 – and found that the evidence established intentional misappropriation.

As to delay

With regard to Disciplinary Counsel’s multi-year delay in proceeding with the charges against Mr. Saint-Louis, the Ad Hoc Hearing Committee declared, “It is unclear why [Disciplinary] Counsel waited so very long to determine its position with respect to this case.” The Committee also characterized the delay as “massive and inexcusable.” Nevertheless, the Committee determined that Mr. Saint-Louis was not prejudiced by the delay because (1) it found “no witness who would have testified but did not”; (2) “[t]here were no credibility determinations that the Committee has made that turn on a poor memory due to the passage of time”; and (3) Mr. Saint-Louis “was able to continue the practice of law while Bar Counsel’s investigation remained pending.” Based on its factual findings and its review of our case law, the Committee concluded that Mr. Saint-Louis violated all of the rules set forth in the specification of charges and that dismissal of the charges due to delay alone was unwarranted…

Here, Disciplinary Counsel readily admits that the multi-year delay in prosecuting this case is inexcusable. Indeed the delay is quite troubling because Disciplinary Counsel, the Committee, and the Board have not, and apparently cannot, explain the reason for the protracted delay in this case. Nevertheless, our case law explicitly states that delay alone does not lead to the dismissal of misconduct charges. In re Williams, supra, 513 A.2d at 796. What is required for dismissal of the misconduct charges is delay plus actual prejudice that results in a due process violation. Id. at 797. We discern no due process violation on this record. Mr. Saint-Louis received proper notice of the charges against him, and had an opportunity to respond to those charges throughout the disciplinary proceeding, including his evidentiary hearing. His assertion that the “delay rendered every Ovlas witness unavailable” and deprived him “of any opportunity to examine them or otherwise address the question of their own credibility,” is not supported by the record.

The court rejected the delay as a basis to impose lesser discipline.

Then Bar Counsel opened the investigation in mid-2005 and filed charges a decade later. Do not blame the Assistant who argued the case – it would still be “under investigation” if he had not been hired to clean out the stable. (Mike Frisch)