The Gift That Keeps On Giving

The District of Columbia Board on Professional Responsibility proposes a public censure of an attorney – who had been subject to a lengthy disciplinary process as a consequence of a criminal conviction – for his dishonest conduct in failing to disclose those proceedings in a motion for pro hac vice admission in a federal matter in Virginia

We agree with the Hearing Committee that Disciplinary Counsel proved by clear and convincing evidence that Respondent violated Virginia Rule 8.4(c) when he deliberately failed to disclose his prior disciplinary and criminal history in an effort to mislead [his partner and sponsor in the Virginia matter] Ms. Schellenger to believe that there was no such history.

His non-disclosure in a New York federal matter did not violate ethics rules

Disciplinary Counsel argues that Respondent’s failure to tell [sponsor] Mr. Loh that he was a convicted felon, or that disciplinary proceedings were pending against him in the D.C. Court of Appeals, violated New York Rule 8.4(c), because those omissions “fraudulently induced” Mr. Loh to falsely certify to the SDNY that “[t]here are no pending disciplinary proceeding[s] against WAYNE ROHDE in any state or federal court.” ODC Br. to Board at 11-12. Respondent supports the Hearing Committee, arguing that the proceeding before Hearing Committee Three was not pending before a “court” because a Hearing Committee is not a “court.” Respondent argues that even if the Rohde I proceedings were pending before a “court,” Disciplinary Counsel did not prove that he violated New York Rule 8.4(c) because it did not prove that he acted with “venal intent.” R. Br. to Board at 25-30.

…we find that Rohde I was pending in a “court” when Mr. Loh filed the SDNY application, but that Disciplinary Counsel failed to prove that Respondent understood that it was pending before a court, or that he withheld the information from Mr. Loh in order to mislead him, much less “fraudulently.”

Thus no violation

An honest lawyer may have understood, incorrectly in our view, that the proceedings before the Court of Appeals ended with the referral order to the Board, and thus had seen no reason to disclose.

We find that Disciplinary Counsel failed to prove by clear and convincing evidence that Respondent violated New York Rule 8.4(c) because it failed to prove that Respondent did not tell Mr. Loh about Rohde I in an effort to mislead Mr. Loh or to fraudulently induce him to seek Respondent’s pro hac vice admission in the SDNY.

The leniency previously shown to this attorney is a gift that keeps on giving

As Respondent points out, the Rohde I Hearing Committee explicitly rejected the notion that Respondent left the scene of the accident in order to avoid detection, finding instead that due to his alcoholic blackout, he did not understand what had happened:

The Hearing Committee thus finds that Respondent’s actions, considered as a whole, show that he maintained awareness of the collision for only seconds, left the scene not realizing what he had done, and thereafter conducted himself in a way that showed he had no memory of the event. Thus, the evidence supports [an expert’s] opinion that Respondent’s actions following the collision were not a deliberate effort to elude the authorities or escape responsibility.

Rohde, Board Docket No. D347-05, HC Rpt. at 30-31; see also id. at 30 (finding that Respondent was not “consciously aware of the collision” and did not leave the scene and drive home in a “deliberate effort to conceal his involvement”).

The board on sanction

Small, Hadzi-Antich, Austern, Balsamo, and Glaser suggest that the relevant sanction range is between an Informal Admonition and a short suspension (less than the one year sought by Disciplinary Counsel). We see no reason to disagree with the Hearing Committee’s recommendation that the imposition of a public censure in this matter would constitute a sanction consistent with that imposed for comparable misconduct, and thus we recommend that the Court publicly censure Respondent.

The two most lenient cited cases – Hadzi-Antich and Austern – are from the 1980s.

Small (my case) was a three-year suspension.

Hadzi-Antich involved resume inflation in an application for employment as a law professor; Austern has been clearly recognized as a unique situation involving a thrust-upon conflict on an otherwise distinguished member of the Bar.

David Thomas Austern, 74, one of the nation’s top experts on asbestos and other mass tort litigation, who devoted his life to tort victims as an attorney and to victims of crime as a volunteer, died on May 16, 2013 at his Washington, DC home. His career was spent in the service of well over one million individuals whom he helped as an attorney and volunteer.

Notably, neither case involved a false representation in a matter before a tribunal. 

There simply is no comparable case and consider this:

This respondent got off with no real sanction for a felony conviction that nearly killed an innocent person.

He was given such dispensation because he convinced the hearing committee that he was not responsible for the crime because he was in an alcohol-induced blackout  and was in “recovery” from his alcoholism.

He now is proven to have engaged in dishonesty toward a colleague and a court while in recovery.

To paraphrase Winston Churchill: Never has so much misconduct drawn so little rebuke.

In re Rohde can be accessed here. (Mike Frisch)