One Reprimand Leads To Two Reciprocal Suspensions

A bar discipline matter brought in Delaware drew a public reprimand from the state Supreme Court.

the Delaware Supreme Court issued an Order approving the Board’s Report and imposing a public reprimand with two conditions: (i) Poverman would undergo a mental health evaluation and monitoring by the Delaware Lawyers Assistance Program if he did not seek inactive status within thirty days; and (ii) Poverman would pay the CLE Commission late fees and ODC costs.

He also is admitted in Maryland and the District of Columbia and there the story gets more complicated.

The Maryland Court of Appeals imposed a more severe sanction as reciprocal discipline

Here, Poverman…committed one knowing misrepresentation and repeatedly failed to respond to lawful requests for information from a disciplinary authority. Like Kepple, Poverman made a knowing misrepresentation in a disclosure that was required in order to practice law and—as the Board found—he had no prior disciplinary record throughout a lengthy legal career. Because Poverman’s conduct falls within the same category of severity as that of Harrington and Kepple, we conclude that the appropriate sanction in Maryland is also an indefinite suspension.

Not all indefinite suspensions are alike, however. The measure of severity of each will turn on whether we specify a time after which the lawyer may reapply and if so, what time we assign. In Kepple, Bar Counsel recommended indefinite suspension with a right to apply for reinstatement after no less than one year. Id. at 230, 68 A.3d at 806. The Court, however, imposed a sanction of indefinite suspension with a right to apply for reinstatement after no less than thirty days. Id. Critical to the Court’s decision were the “unique mitigating factors” that weighed in Kepple’s favor. See id. at 230–31, 68 A.3d at 807. First, in her fourteen-year legal career, Kepple had no prior disciplinary violations. Id. at 231, 68 A.3d at 807. Second, Kepple was “youthful and inexperienced at the time of her misconduct, which bespoke less than fully formed sound judgment.” Id. Third, Kepple demonstrated remorse for her actions—she contacted her former law school and met with the Dean to offer repayment for the tuition she should have paid. Id. After balancing the gravity of Kepple’s misconduct against these mitigating factors, the Court concluded that indefinite suspension with a right to apply for reinstatement after no less than one year would be “too harsh.” Id. at 232, 68 A.3d at 807–08…

We conclude that Poverman’s misconduct warrants an indefinite suspension with a right to apply for reinstatement in one year. We shall so order.

Today, the District of Columbia Court of Appeals imposed the same sanction as Maryland.

D.C.’s approach is particularly interesting as the jurisdiction  has long recognized that Maryland is tougher in dishonesty cases than it is as it stated in In re Pennington

We agree with the Board that Pennington’s misconduct would not warrant disbarment in this jurisdiction absent additional circumstances of aggravation not demonstrated.   The Board recognized, correctly, that Pennington’s disbarment by Maryland was dictated by what amounts to a presumption under Maryland law that an attorney who engages in intentional dishonesty will be disbarred. 

We recently covered a decision of the West Virginia Supreme Court that went the other way and chose the lesser of two sanctions. (Mike Frisch)