The Benefits Of Sensible Negotiated Discipline

The District of Columbia Court of Appeals accepted negotiated discipline in a case that took a little over a year from soup to nuts. 

The result puts into place supervision that provides a measure of assurance that the attorney will either practice ethically or face suspension.

Absent the procedure, a case like this one can take five years or more to resolve.

The facts

The violations stem from respondent Kevin J. McNeely’s professional misconduct arising from acts or omissions during the course of his representation of two joint clients in obtaining patent protection. In brief, the clients retained respondent to file utility, international, and design patent applications. After respondent filed the utility and international patent applications and the clients paid respondent the associated fees and costs, respondent deposited the funds in an operating account that held other funds but did not pay the filing fee for either patent. After the clients were unable to make contact with respondent, they retained new counsel and subsequently made contact with respondent, who admitted his failures and worked with successor counsel to restore the utility patent application.

Respondent acknowledged he (1) failed to provide competent representation and serve his client with skill and care; (2) failed to zealously represent his clients; (3) failed to communicate with his clients; and (4) commingled client funds, thereby violating Rules 1.1 (a) & (b), 1.3 (a), 1.4 (a) and 1.15 (a) of the District of Columbia Rules of Professional Conduct. In mitigation, the Committee considered the fact that respondent knowingly and voluntarily acknowledged the facts and misconduct, demonstrated remorse, established entitlement to a Kersey mitigation defense, and does not have a prior history of discipline. As a result, Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a thirty-day suspension, stayed, and three years of probation during which respondent must (1) not commit any other violation of the D.C. Rules of Professional Conduct or the disciplinary rules of any other jurisdiction (excluding any reciprocal discipline imposed for these violations); (2) remain in individual therapy with his treating psychologist; (3) attend Alcoholics Anonymous (AA) at least two times a week and submit proof of attendance to his psychologist; (4) continue his use of psychotropic medication as prescribed by his psychiatrist and meet with his psychiatrist every three months; (5) execute and maintain the appropriate waivers or consent forms to permit the psychologist and psychiatrist to contact the D.C. Bar Lawyer Assistance Program (LAP) if he ceases treatment or fails to attend AA; and (6) authorize LAP to report to Disciplinary Counsel if he stops treatment with his psychologist or psychiatrist, fails to attend AA, or revokes his consent to prevent LAP from reporting to Disciplinary Counsel. Additionally, respondent shall advise, in writing, his employer about the conditions of his probation and copy Disciplinary Counsel on the correspondence. If respondent’s probation is revoked and he is suspended from the practice of law, he must file with this court an affidavit pursuant to D.C. Bar R. XI, § 14 (g) in order for his suspension to be deemed effective for purposes for reinstatement.

The court division consisted of Associate Judges Glickman and McLeese and Senior Judge Steadman. (Mike Frisch)