Attorney Reinstated; Software Savvy Not Required

The District of Columbia Court of Appeals has reinstated with conditions an attorney suspended with fitness

The attorney’s disciplinary record

 As the Hearing Committee found, the foregoing instances of misconduct “involved a consistent pattern of neglect, including the failure to communicate with clients and to comply with multiple court orders, and two instances of conflict of interest.” As the Hearing Committee also noted, Mr. Mance has a history of discipline by this court, having received informal admonitions in 1996 and 2000, a thirty-day stayed suspension in 2005, and a public censure in 2009. The 1996 and 2000 informal admonitions were for failing to provide a written retainer agreement as required by Rule 1.15 (b). See In re Mance, 980 A.2d 1196, 1208 (D.C. 2009). The 2005 stayed suspension and period of probation were for Mr. Mance’s filing of an untimely notice of appeal in his client’s criminal case, neglect in failing to pursue a claim that some of the offenses of which the client was convicted merged, failing to communicate with the client about the appeal, and delay in withdrawing from the case after learning that the client sought to terminate his engagement. In re Mance, 869 A.2d 339, 340 (D.C. 2005). We accepted, as supported by substantial evidence, the Board on Professional Responsibility (the “Board”) finding attributing Mr. Mance’s violations to his “overwhelming case load at the time of the events at issue.” Id. at 342 (internal quotation marks omitted). 

This court imposed the 2009 public censure in an opinion in which we held that “for purposes of Rule 1.15 (d), money paid by a client as a flat fee for legal services remains the client’s property, and counsel may not treat any portion of the money otherwise until it is earned, unless the client has agreed otherwise.” In re Mance, 980 A.2d at 1199. We determined to apply that interpretation only prospectively, however, and we adopted the Board’s recommendation that Mr. Mance receive a public censure for having commingled funds when he placed into his operating account a portion of a flat fee a client had paid to him, causing a delay in returning the funds when the client terminated his services, “because he did not have the funds readily available.” Id. at 1199-200. Mr. Mance also received a public censure in Maryland as reciprocal discipline, and, in 1979, received a private reprimand in South Carolina for failing to perfect an appeal.

The hearing committee had recommended that the petition be denied

In the end, the Hearing Committee recommended against reinstatement because of Mr. Mance’s failure to show that he has taken “concrete steps necessary to avoid similar misconduct in the future” — more specifically, his failure to show “that he understands and is prepared to implement the case management techniques necessary to control his caseload and avoid future misconduct” and his “fail[ure] to demonstrate that he fully grasps the root causes of his misconduct and has taken concrete steps to address it by, for example, taking the courses or training necessary to establish his proficiency in case management.” Mr. Mance’s failure to demonstrate his proficiency in case management left the Hearing Committee with “a substantial question as to whether he will actually be able to” “install case management software programs and use them in his practice.” The Hearing Committee also found that Mr. Mance “failed to explain with any specificity how he intend[s] to manage his case load, communicate with his clients, or calendar cases so that he can respond to court orders and schedules and meet filing deadlines.”

We are loathe to premise our decision on reinstatement on whether Mr. Mance has demonstrated proficiency in using case management software programs.  In the years before such software programs were available, many an attorney effectively practiced law using an old-fashioned system of keeping up with case deadlines and court dates. We think the record in this case shows that the root problem for Mr. Mance — which we think the record shows he does grasp — was that he fell into the pattern of taking on too many cases, with the result that, in his words, he had “more on [his] plate than [he] could handle.” He told the Hearing Committee that the “Number 1” step he needed to take is “keeping [his] case load under control.” He testified, “I just have to be more careful[,] from the day a client comes in, to discussing the case[,] to determin[ing]whether it’s something that I feel I can handle effectively.” He explained repeatedly that “when new cases come in, I need to find out more about what it’s going to require [from] me to handle it, to find out whether it’s something — based on what I already have in-house[,] . . . that I can handle effectively,” rather than take on all cases that come in the door to indulge what he agreed was his “problem saying no to people.” He explained that previously, it was not until he “got in the middle of [matters]” that he realized he “couldn’t do them [e]ffectively.” These explanations ring true in light of the Board’s previous finding that Mr. Mance’s neglect of client matters resulted from his “overwhelming case load.” In re Mance, 869 A.2d at 342 (internal quotation marks omitted). Mr. Mance also recognized that, to remedy the things in which he was deficient, he will need to “set[] aside time at some point in the day, whether it’s mid-day, whether it’s at the end of the day[,] to communicate with clients who’ve been trying to reach [him]” and to “return phone calls on a daily basis.” His statements that “there needs to be certain times of day that [he] do[es] certain things” and that he would need to “not get[] [him]self in a situation[] where [he has] more cases tha[n he] can handle appropriately” sum up his plan for assuring that his misconduct will not repeat itself if he is reinstated. Of course, only if he resumes practice will we be able to tell whether Mr. Mance is able to responsibly reduce his previous caseload.

Disciplinary counsel had opposed reinstatement with conditions

In this case, we conclude, much as we did with respect to Mr. Sabo, that Mr. Mance is fit to be reinstated to the practice of law but that the conditions we have determined to impose “will aid [him] as he restarts his legal career.” Sabo, 49 A.3d at 1233. We accept Mr. Mance’s representation that he will take steps to control his caseload, but we think the financial pressures of maintaining a solo practice are great enough that conditions on reinstatement are appropriate to reduce the possibility that he will commit future disciplinary violations of the kind for which he was suspended. No doubt it will also be helpful for Mr. Mance to have the support of case management resources (both software and personnel resources) that group practice or employment by a law firm may bring with it, since the record establishes that he is not adept at using case management software himself and that, in the near-term, he may be unable as a solo practitioner to afford to hire the support staff he would need to utilize such a system effectively.

To be clear, we do not conclude that these things are necessary for Mr. Mance to be fit to practice; indeed, if he takes on a very small caseload (which perhaps he will do since he will have his Social Security income as a supplement to income from law practice), it should be possible for him to adhere to deadlines and be available to clients using an old-fashioned tickler system even without sophisticated case management software. But we are persuaded that these things would aid him as he resumes the practice of law.

Associate Judge Thompson authored the opinion. (Mike Frisch)