Bar Discipline In The DMV

The bar discipline matter In re Seth Robbins was argued before the District of Columbia Court of Appeals last Thursday.

Although I regrettably was unable to attend, I understand that an issue was raised of practical consequence to the operation of bar discipline in the District, Maryland and Virginia.

The key issue in the case is whether the complainant and lawyer had an attorney-client relationship with respect to a business transaction (the client guaranteed the debt of another client) that turned into financial disaster. 

After a full evidentiary hearing had been held and adverse findings rendered by a D.C. hearing committee, Virginia inexplicably acted.

As described by the Board on Professional Responsibility

We reject Respondent’s argument that we should defer to contrary findings of a three-judge panel in Virginia that considered the hearing transcript, exhibits, and Hearing Committee Report. We recognize that the doctrine of offensive collateral estoppel applies in disciplinary proceedings, and “‘renders conclusive . . . [the] determination of an issue of fact or law when (1) the issue is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum.’” In re Wilde, 68 A.3d 749, 759 (D.C. 2013) (alterations in original) (quoting Modiri v. 1342 Restaurant Group, Inc., 904 A.2d 391, 394 (D.C. 2006)). Pursuant to this doctrine, a respondent may be precluded from relitigating an issue that has already been decided against the respondent in a foreign jurisdiction. Id. at 761 & n.16 (“This court has further provided for the regular application of offensive collateral estoppel in a significant category of bar discipline cases by adopting D.C. Bar R. XI, § 11(c), which calls for the imposition of reciprocal discipline on members of the D.C. Bar upon whom discipline has been imposed by another disciplining court . . . .”). “Under principles of collateral estoppel, in reciprocal discipline cases we generally accept the ruling of the original jurisdiction, even though the underlying sanction may have been based on a different rule of procedure or standard of proof.” In re Benjamin, 698 A.2d 434, 440 (D.C. 1997) (citing In re Richardson, 602 A.2d 179, 181 (D.C. 1992) (per curiam) (collecting cases)).

Respondent here seeks to invoke defensive collateral estoppel, which allows a defendant to prevent a plaintiff from relitigating an issue the plaintiff already litigated and lost. See Walker v. FedEx Office Print Servs., Inc., 123 A.3d 160, 164- 65 (D.C. 2015) (discussing defensive collateral estoppel generally). However, Respondent cites no cases in which Disciplinary Counsel has been precluded from prosecuting a respondent who has been exonerated in a foreign jurisdiction. R. Br. 37. On the other hand, Disciplinary Counsel cites examples of cases in which a respondent was prosecuted here after a foreign exoneration. Disciplinary Counsel’s Br. 21 (citing Wilde, 68 A.3d at 759 (Disciplinary Counsel not precluded from litigating issue decided in respondent’s favor in Maryland disciplinary proceedings), In re Peterkin, Bar Docket No. 387-07 at 38 (BPR Nov. 7, 2011) (preclusive effect not given to Maryland disciplinary proceedings when Disciplinary Counsel was not a party) (appended Hearing Committee Report), and In re Berryman, 764 A.2d 760, 766-67 (D.C. 2000) (probate court finding not binding on Disciplinary Counsel when Disciplinary Counsel not a party)). We recognize that in all of these cases the record in the foreign jurisdiction was different from the record developed here and that, in this case, the evidentiary records overlap because the Virginia panel considered the evidentiary record presented to the Hearing Committee, and the Hearing Committee Report itself, before reaching a contrary conclusion as to the existence of the attorney-client relationship.

The two proceedings, however, were not identical. The Virginia panel did not hear live witnesses and did not read Disciplinary Counsel’s brief to the Hearing Committee. It did hear argument from Virginia’s Bar Counsel and Respondent, which this Hearing Committee did not hear. See R. Br. 3. Given these differences, and the fact that the D.C. discipline system had already conducted a live evidentiary hearing, and a Hearing Committee had prepared a report based on that live evidentiary hearing before the case was considered in Virginia, we see no reason to defer to the findings of the Virginia panel.

The Virginia order is linked here.

It is hardly a valentine per Judge Hupp

Quite frankly, we do not like the decision we make today…we have a lot of criticisms of Mr. Robbins’ conduct and certain aspects of the conduct cause us substantial  concern. However, after wrestling at length with that high burden of proof and carefully weighing the evidence in its light, we find that the evidence falls short, but barely so. 

The board here, of course, gets it right. But one is left to wonder why the Virginia Bar Counsel decided to go forward with an original proceeding only without the witnesses. 

The board recommends a 60-day suspension for, in the main, an undisclosed conflict of interest.

The bigger picture involves the fact that there is a significant bar membership overlap between Virginia, Maryland and the District of Columbia.

But there are also significant differences in how those three jurisdictions investigate, prosecute and sanction misconduct. For instance, Maryland’s harsher views on serious dishonesty has spawned a veritable cottage industry of reciprocal discipline downward departures in the District of Columbia and increases in Maryland.

One of my more interesting bar sanction cases as a prosecutor involved a truly voluntary self-report of serious dishonesty. Maryland increased the sanction to disbarment as reciprocal discipline. 

When someone complains about a multi-admitted attorney, complaints are typically filed wherever the accused attorney is admitted.

It is imperative that the various Bar Counsel offices work cooperatively to avoid exactly what occurred here.

The good news for Respondent – presumably he will not face reciprocal discipline if and when he is suspended in D.C. (Mike Frisch)