Reprimand Train Leaving Station
The District of Columbia Board on Professional Responsibility has raised the sanction from a proposed informal admonition to a board reprimand of a former Amtrak associate general counsel for litigation who backdated three documents
Respondent Marylin Jenkins is charged with violating Rule 8.4(c) of the District of Columbia Rules of Professional Conduct by engaging in conduct involving dishonesty and misrepresentation. The Ad Hoc Hearing Committee, in a Report and Recommendation dated May 9, 2016, found that Respondent committed the alleged violation in that she included in files to be produced to her employer’s Office of Inspector General (“OIG”) three engagement letters that had been backdated by outside counsel at her request. Respondent did not disclose to the OIG that the letters, and the date of her signature countersigning each letter, were backdated. The Hearing Committee recommended that Respondent receive an informal admonition, the sanction recommended by Disciplinary Counsel. Neither Disciplinary Counsel nor Respondent took any exception to the findings, conclusions, or recommended sanction. Accordingly, the Board bases its Opinion and Order on the record, pursuant to Board Rule 13.5.
The Board, having reviewed the Hearing Committee’s Report and Recommendation and the record, concurs with the Hearing Committee’s factual findings, as supported by substantial evidence in the record, and with its conclusions of law, as supported by clear and convincing evidence. The Hearing Committee’s Report and Recommendation is attached hereto, and its findings and conclusions, except the recommended sanction, are incorporated by reference.
Chair Robert Bernius on sanction
…the Board concludes that an informal admonition would be too lenient in this case, and a formal censure too severe. Deterrence is an important factor in determining the appropriate sanction, and the Board is not confident that an informal admonition would send a clear enough message to attorneys who, like Respondent, may be tempted to “tidy up” the files in an internal investigation. As in Gutjahr, we believe a Board reprimand is necessary here to deter Respondent and others – including lawyers considering whether to comply with a client’s backdating request – from committing or enabling such misconduct in future.
The decision (which ends the matter as reprimand is within the board’s power) is linked here by following to In re Marylin Jenkins.
Our coverage of the hearing committee recommendation is linked here .
The docket number means that the case – where the facts were apparently not in dispute – has already been in the disciplinary system for six years.
The case was prosecuted by Hamilton P. Fox III, which (I assume) means that he inherited the case and that someone else at the Office of Disciplinary Counsel is responsible for the delay.
Zoe Tillman reported that the attorney had previously rejected an informal admonition.
One lesson may well be that there is, as a general proposition, little upside to fighting an informal admonition.
Because of the procedural posture, the hearing committee lacked the power to informally admonish. Rather, the matter must then be reviewed by the board, which has the power (exercised here) to up the ante.
Perhaps the most notable rejected informal admonition in D.C. is In re Sofaer.
There a lineup of Len Becker (second-chaired by me) against David Isbell at the hearing and Sam Dash and David before the Court of Appeals provided undoubtedly the best handled case by the finest lawyers (myself excepted) in D.C. bar disciplinary history.
The hearing committee was also about as good as it gets.
Glenn Fine went on to a notable career as DOJ Inspector General. The other attorney – Sally Gere – is a first-rate attorney with a record of public service, private practice and teaching at Georgetown Law.
Warning: With Len’s passing, I may shortly feel the need to blog a bit about the Sofaer case (consistent, of course, with my continuing duties of confidentiality). (Mike Frisch)