Benefit Of The Doubt And The Skeptic
The District of Columbia Court of Appeals agreed with its Board on Professional Responsibility that a one-year suspension was appropriate for an attorney’s false assertions in a motion to recuse a judge but rejected the Board’s proposed fitness requirement.
The Office of Disciplinary Counsel (known until 2015 as the Office of Bar Counsel) initiated disciplinary proceedings against respondent after he filed, in a criminal matter before the Honorable Russell F. Canan, a motion for Judge Canan to recuse himself. The recusal motion, which respondent filed on October 16, 2009, stated in pertinent part as follows:
[S]everal years ago, Judge Canan reported undersigned counsel for an alleged ethical violation, which was then investigated by D.C. Bar Counsel. The investigation was then dismissed without any disciplinary action being instituted against undersigned counsel.
Respondent acknowledges that these assertions were untrue in that (1) “Judge Canan had not reported [r]espondent for an ethical violation” and (2) the matter Judge Canan identified “had not been dismissed but was active in the disciplinary system” (with the result that respondent “ultimately did receive[] discipline.
The court found the evidence insufficient to impose a fitness requirement
On this record, although we obviously lack certainty regarding whether respondent will practice ethically if permitted to resume practice at the end of his one-year suspension, we cannot say that we have real skepticism about whether he will do so. “[T]he requisite ‘serious doubt’ must be generated by evidence that is ‘clear and convincing’”; there must be “[a] firm belief in a serious doubt.” Cater, 887 A.2d at 24 We do not see clear and convincing evidence of a pattern of dishonesty; at best (or worst), the evidence on this score is in equipoise, meaning that we must give the respondent the benefit of the doubt.15 Like the Hearing Committee majority, we find “no evidence that supports a finding that there is clear and convincing evidence of a serious doubt as to [r]espondent’s ability to practice ethically” and no “clear and convincing evidence that [his ‘intentional misrepresentation to Judge Canan’] was anything other than a single, isolated incident.”
Associate Judge Glickman dissented on that point and recites the attorney’s lengthy record of prior discipline
In the present case, the court upholds findings that respondent intentionally made false statements in a motion seeking a judge’s recusal in violation of Rule 3.3 (a)(1) and that, in so doing, he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. The court also upholds the finding that respondent testified falsely to the Hearing Committee in denying that his misstatements were intentional.
All this adds up to a lengthy series of ethical violations spanning two decades, one in which the misconduct grew more serious as time went on. Warnings and chastisements failed to impress respondent with the need to conform to ethical standards of practice. Based on this history of ethical breaches, the gravity of the more recent ones, the disturbing pattern of disregard for ethical norms and dishonesty they evince, and the absence of significant countervailing evidence in respondent’s favor, I have a serious doubt – “real skepticism” – about respondent’s ability to practice law ethically following his suspension.
(Mike Frisch)