After The Fall
A District of Columbia Ad Hoc Hearing Committee has rejected claims of unfairness and ineffective assistance of counsel (who withdrew from the case in mid-hearing) and recommended disbarment in a case brought against an attorney practicing in California.
After Bar Counsel had rested and her non-attorney brother had testified
After the lunch break on April 30, 2014, Respondent’s counsel advised the Hearing Committee that he was unable to participate further in the hearing because of an injury he sustained from a fall earlier that morning ; Disciplinary Counsel had rested, and Respondent was the only remaining witness to be called in her case. The parties estimated that the case could be completed in one day, and the Hearing Committee postponed the conclusion of the hearing until a later date…
The hearing resumed on July 8, 2014, and Respondent did not appear. Counsel for Respondent represented that the parties had attempted a negotiated discipline and that Respondent therefore had not traveled from California to attend the hearing, but because Respondent had not returned executed documents by the stated deadline, there was no negotiated discipline agreement. The hearing proceeded with Disciplinary Counsel’s rebuttal case, during which Disciplinary Counsel called rebuttal witnesses Angela Thornton and Julia Porter.
Counsel withdrew and scheduling became difficult but then this
On November 17, 2014, Disciplinary Counsel served on Respondent a new, four-page Specification of Charges, Bar Docket No. 2014-D010, which had been filed with the Board on Professional Responsibility (“Board”) the previous week. This new specification alleged that Respondent violated Rules 1.15(a) (commingling entrusted funds in an operating account and intentionally or recklessly misappropriated entrusted funds); 1.15(b) (depositing entrusted funds into a bank that is not an approved depository); 1.16(d) (failing to take timely steps to refund unearned fees at termination of representation); 5.1 (failing to ensure other firm lawyers conform to Rules); and 5.3 (failure to supervise nonlawyers).
The later case led to the disbarment recommendation after a hearing that Respondent did not attend.
Here, we find clear and convincing evidence that Respondent misappropriated client funds in violation of Rule 1.15(a). The Mills Retainer Agreement expressly provided, and Mr. Mills understood, that fees and costs incurred during the representation would be applied against the $5,000 retainer fee, and that Malyszek & Malyszek would return any unused amount of that retainer to Mills. According to the final accounting that Mills received from Malyszek & Malyszek on August 8, 2013, the unused portion of the $5,000 retainer amounted to approximately $990, which was owed to Mills, and which Respondent ultimately returned to Mr. Mills in March 2014. We conclude that Respondent misappropriated funds owed to Mills as of at least August 8, 2013, when the balance in the firm’s operating account into which the Mills retainer was deposited fell below the $990 owed to Mills.
The committee found intentional misappropriation and failure to supervise her brother . It rejected a host of due process and other contentions offered by the Respondent
We set forth below why Respondent’s particular contentions and objections are unfounded. But, notably, even if we were to credit any of them (which we do not), it would have no effect on the Hearing Committee’s findings and conclusions regarding the Mills representation. Neither Respondent’s unsworn declaration nor any of her evidentiary objections address allegations in the Second Specification of Charges arising from the Mills Matter. Likewise, Respondent does not and cannot claim prejudice from allegedly inadequate representation in connection with the misappropriation charges arising from the Mills Matter, as the consent withdrawal of her counsel pre-dated the November 2014 Second Specification of Charges. It is in connection with Respondent’s Mills representation that the Hearing Committee has found intentional and, at a minimum, reckless misappropriation, compelling a recommendation of disbarment.
The case is In re Cynthia Malyszek and can be accessed here. Cites to the record omitted throughout. (Mike Frisch)