Too Late To Complain

The District of Columbia Court of Appeals has held that an attorney’s failure to preserve her objections to discipline waived the claims

In a three-page brief in this court, Ms. Hargrove contends that (1) the Board inappropriately entered a default judgment against her under D.C. Bar R. XI, § 8 (f), because Disciplinary Counsel did not provide clear and convincing evidence that she violated the Rules of Professional Conduct listed in the specification of charges; (2) she did not violate the Rules of Professional Conduct; and (3) there were procedural errors during the disciplinary process. Disciplinary Counsel responds that Ms. Hargrove is precluded from raising these contentions in this court and that in any event the contentions lack merit.

We agree with Disciplinary Counsel that Ms. Hargrove’s contentions have been forfeited. Ms. Hargrove had numerous opportunities to challenge the allegations against her and to object to any procedural errors, but she failed to properly do so. First, Ms. Hargrove did not timely file an answer to the specification of charges. After missing earlier deadlines, Ms. Hargrove belatedly moved to late-file two answers, citing only the “press of business” as a reason for her tardiness. Pursuant to D.C. Bar Rule XI, § 8 (f), the Hearing Committee entered an order of default, concluding that Ms. Hargrove had not demonstrated that her failure to timely file an answer was due to excusable neglect. The Hearing Committee therefore treated the allegations against Ms. Hargrove as admitted, subject to Disciplinary Counsel’s obligation to provide clear and convincing evidence of the violations. Second, Ms. Hargrove did not appear either at a pre-hearing conference or at the hearing before the Hearing Committee. Third, after the Hearing Committee issued its Report and Recommendation, Ms. Hargrove had the opportunity to move to vacate the order of default, Board R. 7.8 (g), or to file notice of exceptions to the Hearing Committee’s findings and recommendations, Board R. 13.3. She did neither.

 The court imposed a 60-day suspension.

If this decision signals an increasing willingness of the D.C. disciplinary system to enforce the consequences of default, it is a most welcome and positive trend. (Mike Frisch)