With All Deliberate Speed

It is my fervent hope that the last of these cases from the prior administration of the District of Columbia Disciplinary Counsel – serious matters where the ODC took eight or so years to file charges – are coming to a merciful end with the filing of a hearing committee report in In re Timothy Smith.

The Bar Docket No. is 2010D – 371, meaning that the complaint was opened for investigation in mid-2010.

How serious are the allegations?

the Hearing Committee finds that Disciplinary Counsel proved by clear and convincing evidence that Respondent violated Rule 1.15(a) by commingling and recklessly misappropriating entrusted client funds; that Disciplinary Counsel proved by clear and convincing evidence that Respondent failed to maintain complete records in violation of Rule 1.15(a), and that this conduct substantially interfered with the administration of justice in violation of Rule 8.4(d). The Hearing Committee recommends that Respondent be disbarred pursuant to District of Columbia Court of Appeals precedents, there being no extraordinary circumstances asserted by Respondent.

The charges were filed in February 2018.

The response to the delay could be a near cut-and-paste of a dozen prior matters

While the Hearing Committee recognizes that the eight-year interval is very long, Respondent did not appear to suffer any unfair prejudice as a result of time lapsing between Disciplinary Counsel’s initiating its investigation in 2010, and ultimately filing its Specification of Charges in 2018. During that interval, Disciplinary Counsel continued to pursue its investigation and communicate with  Respondent, so he was not being lulled into a false sense of security. See DX 16 (2012 Disciplinary Counsel Letter to Respondent). Respondent argues that the Attorney Advisor to the Auditor-Master had problems recalling all details about her 2010 audit of the T.S. Trust, and that some records from that audit were not maintained. R. Br. at 49. But Respondent identifies no particular issue on which the Attorney Advisor to the Auditor-Master’s lack of recall—or missing audit materials—impacted the defense of this case. Many financial records from the Auditor-Master proceeding were maintained, and these are materials which were—or should have been—maintained in the care, custody or control of Respondent, as the T.S. Trust trustee. Respondent was on notice of Disciplinary Counsel’s investigation shortly after the Auditor-Master’s Report issued in July 2010. See FF 37; DX 13 (Auditor-Master Report of July 30, 2010); DX 15 (Respondent Response to Disciplinary Counsel’s Initial Inquiry, dated Sept. 16, 2010). Knowing that the Auditor-Master Report triggered a formal inquiry by the Office of Disciplinary Counsel, Respondent himself was on notice and had a duty to preserve all relevant materials. He therefore cannot demonstrate unfair prejudice if some of the records from his earlier tenure as trustee of the T.S. Trust were not maintained by him or the Auditor-Master.

Nor is it the case that this Hearing Committee relied upon the Attorney Advisor or the Auditor-Master’s memory—or the Auditor-Master’s Report—as conclusively establishing Respondent’s misconduct. In his Answer and the Joint Stipulations, Respondent admitted to many of the factual findings that establish his misconduct. And here, Disciplinary Counsel submitted into evidence—which the Hearing Committee accepted without objection—the relevant court orders, trust instruments, correspondence, and bank account statements that establish Respondent’s reckless commingling and misappropriation by clear and convincing evidence.

The delay in prosecution is singularly indefensible when one realizes that the Auditor-Master had investigated and already made findings in sending the matter to Bar Counsel

The [July 20, 2010] Auditor-Master Report concluded that Respondent engaged in commingling and misappropriation during his nine-month tenure as trustee of the T.S. Trust. DX 13 at 13-11 to 13-12; see DX 4, DX 8. The Auditor-Master included Bar Counsel Wallace E. Shipp, Jr. on the service list of the report. DX 13 at 13-15.

An unspoken harm is to the public and the legal profession, demonstrating a serious lapse in the obligation to promptly resolve bar complaints, particularly ones that may result in disbarment.

The unspoken benefit to the attorney is a decade of additional practice. 

The committee report may be found here.

I will report back in a few years (fates willing) when the matter is concluded. (Mike Frisch)