Probation Insufficient; Suspension Ordered
The District of Columbia Court of Appeals agreed with Disciplinary Counsel and rejected a fully-stayed suspension proposed by the Board on Professional Responsibility in favor of an actual suspension
An Ad Hoc Hearing Committee (the “Hearing Committee” or the “Committee”) recommended that respondent Michael Avery be suspended for forty-five days for violations of several District of Columbia Rules of Professional Conduct in connection with his representation of a client, Mary Brown, in 2004 and 2005. The Board on Professional Responsibility (the “Board”) recommended a forty-five-day suspension stayed in favor of six months of probation. Respondent states that he disagrees with some of the Hearing Committee‟s and Board‟s findings, but he does not ask us to overturn any, and he takes no exception to the Board‟s recommended sanction. Disciplinary Counsel does not take exception to a forty-five-day suspension (although characterizing it as “particularly lenient”), but argues that respondent should be required to serve an actual suspension. Agreeing with the Board that this case is “most similar to those in which sixty-day suspensions were imposed” and acknowledging the assessment by the D.C. Bar Practice Management Advisory Service that respondent has made changes in his practice that “make an occurrence like that which gave rise to the bar complaint in 2004 very unlikely,” but also concurring with Disciplinary Counsel that an actual period of suspension is warranted as a deterrent, we conclude that a sixty-day suspension, with thirty days stayed in favor of a one-year period of probation, is the appropriate sanction.
The attorney had a high-volume personal injury practice. He engaged in client-related misconduct in a single case
The Committee found that respondent was “disengaged” from the matter and “abdicated responsibility for his representation of his client,” thereby failing to discover that his office had not “conduct[ed an] adequate investigation of Ms. Brown‟s injuries,” had not considered whether to obtain medical reports “to determine the precise nature of her injuries,” had not conveyed GEICO settlement offers to her, had not consulted with her before agreeing to a settlement, had deposited the GEICO check without obtaining a signed release from her, and had failed to notify her of the check and to send her a settlement disbursement sheet.
Further
The Committee found that respondent made misrepresentations to Disciplinary Counsel when he responded to Ms. Brown‟s complaint, “mischaracterizing the $8,800 payment from GEICO as a [mere] settlement offer and . . . giving the misleading impression that he had met with Ms. Brown to discuss the offer soon after it was made” (even though he did not meet with Ms. Brown until a year and a half later). (emphasis added). Further, the Hearing Committee found that respondent‟s testimony that Ms. Brown had approved the settlement (“despite all evidence pointing to the contrary conclusion”) was “not credible,” that respondent “essentially conceded that he had lied to GEICO „in an effort to protect [his] client‟s interest,‟” and that respondent “falsely testified” before the Committee when he told the Committee that his statement to GEICO was itself a lie. The Committee also cited as an aggravating factor the fact of respondent‟s prior discipline (a public censure in 2007 for incompetence, neglect, and failure to communicate with a client), but reasoned that the prior discipline was “not as aggravating as if the conduct had taken place[] after [respondent] had already been through a disciplinary proceeding.”
Actual suspension was deemed necessary to protect the public and guide the Bar.
Here, respondent neglected his client, made misleading statements to Disciplinary Counsel, and gave what the Hearing Committee and Board found was “not credible” or “false testimony.” Unlike Chapman, respondent has a prior disciplinary history (involving violation of some of the same Rules involved here), but the Hearing Committee and the Board found that he understands the seriousness of the issues. On balance, we conclude that a sanction similar to the one we imposed in Chapman — a sixty-day suspension, with thirty days stayed in favor of a one-year period of probation — is warranted here as well.
Note to Respondents on getting help from the Bar’s practice assistance program
the Practice Management Advisory Service assessment is information that we deem reliable and that we may take into account for purposes of determining what sanction is appropriate. We have frequently directed respondents to “obtain an assessment from [the Practice Management Advisory Service] and comply with and implement any [Practice Management Advisory Service] recommendations.” In re Coleman, 162 A.3d 159, 161 (D.C. 2017); see also, e.g., In re Murdter, 131 A.3d 355, 362 (D.C. 2016).
Associate Judges Glickman, Thompson and Easterly were on the per curiam opinion. (Mike Frisch)