A Slow Payout May Lead To A Substantial Sanction

The District of Columbia Board on Professional Responsibility recommends a two-year suspension with fitness for misconduct in an estate matter

On August 28, 2000, Judge [Cheryl] Long appointed Respondent to serve as Personal Representative of the Estate of Arnold Lindsey because she had determined that, due to a dispute among the heirs, the personal representative should be “a neutral member of the bar. . . .” FF 2.3 Respondent retained counsel to represent the Estate in a wrongful death action, which was subsequently settled for $575,000 and approved by the court on July 8, 2003. FF 3, 11.

Respondent’s misconduct arises out of his failure to take steps to collect and distribute the settlement funds. FF 12. One of the defendants sent its share of the settlement ($475,000) to Respondent’s law firm on July 28, 2003, less than a month after the settlement. FF 13. That check was never negotiated. Id. A replacement check dated December 9, 2004 was sent to Respondent, and Respondent deposited it in January 2005. FF 17.

On July 8, 2005, the court ordered Respondent to proportionally distribute the Estate assets in accordance with a May 2005 arbitration award that had allocated the assets among the heirs. FF 19. Respondent made his first distribution in October 2005, after receiving a $75,000 settlement payment from another defendant in September. FF 20. However, the October distribution included only $100,000 of the $550,000 in settlement payments Respondent had received. FF 21. The final settlement payment ($25,000) was received in November 2005, more than two years after the settlement. FF 20. 

A motion was filed to remove Respondent as Personal Representative. FF 3, 25. The court referred the matter to the Auditor-Master to determine whether Respondent had caused the Estate to lose money through his failure to collect the settlement funds and deposit them into interest-bearing accounts. FF 26. The Auditor-Master concluded that Respondent’s inaction cost the Estate $51,312.32. FF 27. The court removed Respondent as Personal Representative and ordered him to pay that amount to the Estate. FF 28. Respondent appealed, and the Court summarily affirmed the order in a per curiam opinion issued on May 29, 2013. FF 29. Respondent eventually paid the Estate $51,312.32 in 2013. FF 30; see Tr. 167-70.

The board rejects the argument that one appointed as a “neutral member of the bar” was not obligated to follow attorney ethics rules. 

he was acting in a professional capacity as a lawyer when he was Personal Representative, and the Hearing Committee correctly concluded that the Rules of Professional Conduct apply to him.

The effort to place blame on wrongful death case counsel likewise failed

The theme running through Respondent’s argument is that the Hearing Committee held him responsible for the failings of counsel he hired to handle the wrongful death matter. That is not the case. As set forth in detail in the attached Hearing Committee report, the Hearing Committee held Respondent responsible for his actions and his failure to act. The Hearing Committee did not find him vicariously responsible for the acts of others. We agree with the Hearing Committee.

The BPR considered an earlier  case pending before the court and noted that the attorney acknowledged misconduct in neither matter in recommending a substantial sanction.

The case is In re Nathaniel Speights and can be found here.

A significant issue lurks here

Disciplinary Counsel argues that Respondent has waived his right to make arguments to the Board because he failed to timely file his post-hearing brief with the Hearing Committee. See Disciplinary Counsel’s Brief (“ODC Br.”) at 7-8. The Board considered and rejected a similar argument in In re Malyszek, Board Docket Nos. 13-BD-102 & 14-BD-098 (BPR June 16, 2017), and we do so here as well. As we concluded in Malyszek, while we are sympathetic to Disciplinary Counsel’s argument, we do not believe the Court has given the Board the power to adopt the waiver doctrine advanced by Disciplinary Counsel. See Malyszek, Board Docket Nos. 13-BD-102 & 14-BD-098, at 5-6. 

Here is one instance where, in my view, the board misunderestimates its power.

The Court of Appeals has delegated to the board the power to adopt rules that are “not inconsistent” with the overarching purpose of Rule XI.

Rule XI, section 4(e)(10) empowers the board

 To adopt rules, procedures, and policies not inconsistent with this rule or any other rules of this Court 

Sensible waiver policies that promote prompt decisional results very much serve that purpose.

Keep an eye on the Malyszek case (or permit me to do it for you).

Footnote 1: the systemic hostility to any manner of waiver and default has its genesis in the most significant D.C. bar case that no one has ever heard of – In re Dudley Williams (“Williams I”), decided in 1983, where disbarment had been proposed under circumstances that caused the court hesitation

The Hearing Committee conducted no hearings on the charges herein. It received no sworn evidence either physical or testimonial. Relying solely upon Rule XI, § 7(2), it deemed the unsworn “Specification of Charges” as laid out in the Bar Counsel’s unsworn petitions to be admitted facts and adopted them pro forma as its findings of fact. Finding multiple violations of the Disciplinary Code, the Hearing Committee then recommended the sanction of disbarment. Thus, resulting from respondent’s failure to answer the charges against him, we have a finding of disciplinary violations and a recommendation of disbarment which is not based on any proof under oath. This result cannot withstand a due process attack.

It is my view that this language created a 34 year-long overreaction that smothers D.C. lawyers in a comforting blanket of more due process than is accorded to accused criminals. 

Footnote 2: I handled Williams II, which also was a significant (and better known) precedent.

The Board on Professional Responsibility (“the Board”) was established to promote the highest standards of professional conduct among members of the bar of this court. It dismissed a disciplinary proceeding against respondent Dudley R. Williams on the sole ground that he had not been afforded a “speedy trial” of the charges against him. Because the license to practice law in the District of Columbia is a continuing proclamation by this court that the holder is fit to do so, we regard as improper the dismissal of formal charges against respondent due only to a delay in prosecution. We remand for the Board to provide us with its findings and recommendation as to what discipline, if any, should be imposed.

Thus, it appears that the principle holding leading to the systemic delays that plague D.C. Bar discipline can be traced back directly to me.  Mea culpa. (Mike Frisch)