Win Win

An important decision from the District of Columbia Court of Appeals approving a consent disposition in a case involving negligent misappropriation.

The petition is based on respondent’s voluntary acknowledgement that his mismanagement of his Interest on Lawyers Trust Account caused him to negligently misappropriate entrusted funds in violation of D.C. Rules of Professional Conduct 1.15(a). The proposed discipline is a six-month suspension from the practice of law, with three months stayed in favor of one year of unsupervised probation with conditions.

First, the approval signals that Disciplinary Counsel has the authority to decide (subject to the sign-off by a hearing committee) that the conduct amounted to no more than simple negligence.

There were elements of the Board on Professional Responsibility that held the view that every misappropriation had to be tried to determine whether the conduct was intentional, reckless or negligent. 

This decision (although non-precedential for sanction purposes) squarely rejects that ill-considered view.

Second, the approved sanction is, in functional effect, a three-month suspension followed by probation. 

The court uniformly imposes a suspension of no less than six months in contested cases. 

So, an accused attorney and Disciplinary Counsel can negotiate for a sanction that involves some period of suspension below the established floor. 

As I blogged earlier, this disposition is entirely reasonable, balancing the protection of the public and the integrity of the profession. It signals a new era of acceptance of consent dispositions.

If the case had gone forward on agreed facts without this consent, it would have taken five years (or more) and consumed limited resources to get an extra three months.

Oh Heart Be Still! (Mike Frisch)