Thank God It’s Friday

The recipient of one of the biggest breaks in District of Columbia Bar history – a big firm lawyer who never served a day of suspension for a felony hit-and-run conviction – deserves another for false statements to a court and colleague in a motion for pro hac vice admission according to a Hearing Committee report issued today.

Neither Mr. Fink nor Mr. Rohde was admitted to practice in the United States District Court for the Eastern District of Virginia. Mr. Fink asked Ms. Schellenger, who was admitted there, to move his own and Mr. Rohde’s admissions pro hac vice on behalf of Damco. DX 1 at 96 (Affidavit of Kathryn Ruth Yingling Schellenger); Tr. 114 (Schellenger: “It was Marc Fink who asked me to do it.”); Tr. 137-38 (Schellenger).

The sponsoring counsel was not advised

Ms. Schellenger testified that she would not have signed and filed the application with the Eastern District of Virginia if she had known about Mr. Rohde’s felony conviction or the pending disciplinary proceedings. DX 1 at 97, ¶ 6 (Schellenger Affidavit); Tr. 117 (Schellenger). She viewed the information as relevant because she believed that the disciplinary proceedings pertained to his “conduct or fitness as a member of the bar.” Tr. 116-17 (Schellenger).

The committee rejected claims of offensive collateral estoppel and dealt with complex choice of law issues in finding misconduct.

He knowingly omitted the pending bar matter in the pro hac motion

The Hearing Committee also finds clear and convincing evidence that Respondent knew in 2005 that there were proceedings against him before the D.C. Court of Appeals pertaining to his conduct and fitness as a member of the bar. His counsel filed two briefs on his behalf. RX 2; RX 4. Disciplinary Counsel’s brief was served on Respondent himself, albeit care of his counsel. RX 3 at 12. And, of course, the question on the table was whether Respondent’s license to practice law should be immediately suspended.

…The Hearing Committee therefore concludes that Respondent possessed actual knowledge of D.C. action No. 05-BG-1141 when he made the false statement on the pro hac vice form. In so concluding, the Hearing Committee does not believe that Respondent lied in his testimony in this matter. As noted supra, Respondent’s testimony was careful and precise. When speaking in his own words, he never claimed to have forgotten D.C. action No. 05-BG-1141 – he merely claimed not to have focused on it at the time he signed the pro hac vice form.

And misled his sponsor

the Hearing Committee finds that Disciplinary Counsel has proven by clear and convincing evidence that Respondent understood that Ms. Schellenger wanted to know about his criminal and disciplinary history, and that he deliberately failed to disclose that fact in an effort to mislead her. Regardless of what conclusion Respondent & Mr. Fink reached, as counsel of record and lead local counsel in the E.D. Va. matter, and as the person who was signing her name to the pro hac vice application, Ms. Schellenger was entitled to consider the facts for herself and form her own opinion. Certainly the E.D. Va. would have expected her so to do. Ms. Schellenger’s testimony before the Hearing Committee was quite clear and quite emphatic on the point that she considered these facts to be highly material to her decision to sponsor Respondent, and we find that those sentiments were clear to Respondent at the time. The Hearing Committee finds her credible and credits her testimony as clear and convincing evidence of Respondent’s knowledge that his criminal and disciplinary history was something she would have expected to be told before sponsoring him.

As to the prior discipline, a double dose of disingenuous dispensation

Respondent has previous disciplinary history – to wit, his felony hit-and-run conviction at issue in Rohde I. The Hearing Committee is of the view that it would be inappropriate to enhance Respondent’s sanction based on the conduct at issue in Rohde I, for two reasons.

First, to do so would undermine the application of Kersey mitigation. As the Board and the Court of Appeals determined, Respondent qualified for Kersey mitigation due to his substantial rehabilitation from alcoholism. See DX 3 at 59, 91 (Board Report); DX 3 at 93 (Court of Appeals opinion). To enhance Respondent’s sanction in this matter due to the events of Rohde I would, in essence, be to impose a sanction that the Board and the Court of Appeals found inappropriate under Kersey.

Second, Respondent’s conduct in this matter is not a repetition of the misconduct at issue in Rohde I.

Please take a moment to understand this.

He got off scot free for a FELONY conviction because he was a recovering alcoholic.

Here, he lied about that fact and the resulting bar litigation while he was sober and in recovery!

To ignore that he engaged in serious misconduct while sober is what “undermines the application of Kersey mitigation.”

The recommendation for a public censure can be found in In re Wayne Rohde (link here).  (Mike Frisch)