D.C. Board Not Obligated To Defer To Disciplinary Counsel’s Exercise Of Discretion

A recent report of the District of Columbia Board on Professional Responsibility highlights the distinct role that the volunteer system of adjudication plays in its interactions with Disciplinary Counsel.

In In re Douglas Evans, an attorney had neglected an appeal. He has a record of three prior informal admonitions.

Disciplinary Counsel and the attorney had stipulated to the violations and agreed on a sanction.

Both the Hearing Committee and Board found the stipulated sanction unduly harsh in light of the misconduct.

Disciplinary Counsel argued that its exercise of discretion should be deferred to by the Board.

Not

Throughout its Brief on Exception to the Report of the Hearing Committee (“Brief on Exception”), Disciplinary Counsel relies heavily on the fact that Respondent and Disciplinary Counsel stipulated to the Rule 8.4(d) violation and the sanction. Disciplinary Counsel argues that the Hearing Committee improperly “second-guessed the sanction that the parties believed would be appropriate and necessary to deter, would reflect consistency and be warranted in the particular circumstances of the case.” Instead, Disciplinary Counsel argues that the Board should defer to the “parties’ agreement, as long as it lies within the wide range of sanctions for the misconduct.”  Similarly, while acknowledging that the Hearing Committee did not find one of the violations to which Respondent and Disciplinary Counsel stipulated, which the Hearing Committee considered to be a justification for making “comprehensive findings, notwithstanding the respondent’s stipulations,” Disciplinary Counsel argues that the Hearing Committee should have “err[ed] on the side of efficiency” and issued a “simple one-page acceptance of [violations and sanctions] stipulations.” The fact that the parties may agree, however, is not the basis for finding any specific Rule violations, imposing a disciplinary sanction, or for the Board or the Hearing Committee to abdicate their responsibilities to determine the appropriate sanction consistent with applicable precedent. (citations to record omitted)

The Board agreed with Disciplinary Counsel that the conduct was prejudicial to the administration of justice.

Although these facts present a close question, and this case involves fewer Court orders and subsequent court actions than the cases previously considered by the Court, we have concluded that Disciplinary Counsel has met its burden of proving more than a de minimis interference with the administration of justice because his failure to comply with Court orders required the Court to (1) order Respondent to file the appendix omitted from his initial filing; (2) dismiss the appeal; (3) review the client’s letter seeking reinstatement; and (4) reinstate the appeal and appoint new counsel. Thus, we conclude that Respondent violated Rule 8.4(d) because his improper conduct tainted the judicial process in more than a de minimis way. See Hopkins, 677 A.2d at 57, 60-61. We note that whether or not we find that Respondent violated Rule 8.4(d), it would not affect our sanction recommendation.

And as to sanction

We…have concluded that the sanction to which the parties stipulated—a six-month suspension stayed in favor of probation, with a fitness requirement in the event of a probation violation—would be unduly harsh. First, a six-month suspension is consistent with more serious instances of neglect, reflecting the complete abandonment of the representation and often involving multiple clients and multiple matters over an extended period of time… Here, Respondent’s misconduct occurred during an approximately three-month period of time, after he initially fulfilled his duties to his client by filing the brief, but then failed to file the appendix, failed to notify his client that the appeal had been dismissed, and failed to file a Rule 35 motion for a reduction in sentence. Moreover, Respondent has acknowledged his misconduct and taken steps to remedy it and ensure that it will not happen in the future.

Automatic fitness if there is a probation violation?

We recognize that Disciplinary Counsel seeks a fitness requirement only if Respondent fails to satisfy the terms of probation, and that the Court has imposed conditional fitness requirements in a few limited circumstances. In those cases, the misconduct itself and/or a clearly identified concern about the respondent’s ability to practice ethically supported the conditional fitness showing.

…we disagree with Disciplinary Counsel’s categorical argument that “a lawyer who cannot or will not conform his behavior to the requirements of the probationary terms has demonstrated the need for a fitness requirement.” Brief on Exception at 6 (emphasis in original). Rather, Disciplinary Counsel should be required to demonstrate serious misconduct or a disciplinary history that raises a serious question of fitness if the respondent does not comply with probation, as in Bettis, Fox, and Edwards. Given that Respondent has acknowledged his wrongdoing, expressed remorse, refunded the fees, and taken steps to prevent future wrongdoing, we cannot find that failure to satisfy the terms of probation would meet the high bar set forth in Cater for imposing fitness: clear and convincing evidence of a serious doubt as to Respondent’s fitness to practice. The record thus does not support the imposition of a conditional fitness requirement.

The Board recommends  a 30-day stayed suspension with a one year period of unsupervised probation.

The Cater decision is an important and frequently cited one for sanction purposes. Unfortunately (in my view) the per curiam  court’s holding misallocates burden of proof of fitness to err on the side allowing a suspension-worthy attorney to obtain automatic reinstatement.

I discuss Cater (which was before the court at the time of publication) in No Stone Left Unturned. 

While I favor granting greater discretion to Disciplinary Counsel as a matter of principle (assuming a competent and ethical Disciplinary Counsel), there is no question that the Board here is correct under the current Rule XI.

I find the “owes deference” argument made here surprising and with a predictable result. (Mike Frisch)