Not Flagrantly Dishonest Enough To Get Disbarred in D.C.

A District of Columbia Hearing Committee proposes a three-year suspension with fitness – not disbarment – for a truly horrific course of unethical conduct in failing to prosecute a medical malpractice/wrongful death case.

The case was in South Carolina. The D.C. attorney has never been admitted there.

He got into the case after it had been filed and substantial discovery had been completed. His standard boilerplate retainer agreement failed to consider or acknowledge the lien of former counsel.

He thereafter failed to diligently handle the matter leading to dismissal of the case. He failed to advise the clients, who learned two things when they complained to the South Carolina Bar.

First, he was not a South Carolina attorney. Second, the case had been dismissed.

When the D.C. Bar came calling, he lied and tried to place the blame on local counsel (who had conveniently died)

Many of the findings and conclusions in this case depend, in part, on whether one believes Respondent or his clients. Respondent testified that he told his clients certain information. The clients testified that he did not. Respondent’s version of the facts is too frequently contradicted by his own documents (letters and pleadings) or discredited by his own unexplained failure to memorialize significant conversations. See, e.g., FF 60, 64, 66, 74 (Respondent’s letters to Probate Court and MetLife Insurance contradicting his testimony); FF 31 (failing to document purported disclosure to clients of non-licensure in South Carolina). Respondent’s attempt to lay blame for each of the charges on the deceased Mr. Hinton is unconvincing. Mr. Hinton is obviously not able to defend his conduct, but the record speaks for itself. Mr. Hinton’s law office did not have any record of a fee-sharing agreement with Respondent or any documents to suggest a significant role in Respondent’s legal representation of Mr. Reid and his parents. FF 69. Respondent’s letter to the Probate Court unequivocally stated that “The Bynum Firm” continued its representation of the medical malpractice action as late as March of 2014. FF 64. When initially questioned by the Office of Disciplinary Counsel in April 2016, Respondent claimed that he was the lead attorney representing Mr. Reid and his parents. FF 88. As he became aware of the seriousness of the charges and had to defend himself in the disciplinary process, however, Respondent then shifted blame to Mr. Hinton. The Committee has no difficulty concluding that numerous statements and representations by Respondent during his hearing testimony were, in fact, intentionally false.

The committee finds a host of violations that started with the retainer

Respondent’s copies of two retainer agreements (one for Mr. Reid and a second for Mr. Reid’s parents) had internally conflicting provisions about the fees Respondent would charge (hourly and contingent). The retainer agreement also incorrectly stated he would “file” a medical malpractice action as to the scope of representation, when Respondent knew that actions already were filed and had been litigated for more than two years before his involvement. FF 34, 36. The retainer agreements essentially contain boilerplate text that Respondent used verbatim without considering the actual circumstances of his clients’ situations. FF 34. Disciplinary Counsel also faults Respondent for not mentioning the representation on the insurance matter in the retainer agreement for Mr. Reid. FF 73. Although the agreements themselves were in writing and forwarded to the clients “within a reasonable time after commencing the representation,” the problem is that Respondent’s draft of the “scope of representation” (1) relates to legal representation that was already completed by Mr. Smith, (2) fails to refer to the representation of the Estate in Probate Court, and (3) does not mention the insurance matter. Accordingly, the scope of the representation was not communicated to either Mr. Reid or his parents, and Respondent did not fulfill the requirements of S.C. Rule 1.5(b).

And lack of diligence, communication, conflicts, dishonesty

We…have no trouble finding that Respondent violated S.C. Rule 8.4(d) based on the following: (1) Respondent’s admission to Disciplinary Counsel’s investigator that he was the lead attorney, and then his subsequent position at the hearing that he was not the lead attorney; (2) the recorded false content of his letters to the Probate Court; and (3) his too convenient, unverifiable claim that the now deceased Mr. Hinton understood that he was in charge of the case. All these factors point to one conclusion—Respondent intentionally misrepresented key facts throughout. When Defendants’ counsel moved to dismiss for failure to prosecute, Mr. Hinton alerted Respondent and sent him the motion. FF 61. We believe this conduct is consistent with Mr. Hinton viewing Respondent as the lead attorney. When Mr. Reid and his parents wanted to know the status of the medical malpractice actions, they attempted to reach Respondent, not Mr. Hinton. FF 56-58. Both Mr. Reid’s and Frances Reid’s conduct was consistent with an honestly-held belief that Respondent was a licensed South Carolina attorney experienced in medical malpractice actions who was their only attorney.

But, according to the committee, the dishonesty was insufficiently “flagrant” to warrant disbarment.

On these sad facts – and lying in the bar proceedings – fair minds on the Board on Professional Responsibility and Court of Appeals might disagree as to that sanction conclusion.

The case is In re Raleigh Bynum. The link to the decision (you must either enter the name or page through the recent decisions) is here. (Mike Frisch)