Clinesmith Agreement Moves Forward

District of Columbia Hearing Committee No. Four  recommends that the petition for negotiated discipline of a one-year suspension of Kevin Clinesmith be accepted.

The matter involves a federal false statement conviction in connection with a FISA warrant made as an Assistant General Counsel for the FBI.

All of the evidence regarding Respondent’s intent supports the contention that he did not act with fraudulent intent. As nothing in the record explains the variance between the language in the Criminal Information and that in the Statement of Offense, and only the language in the Criminal Information supports the conclusion that Respondent made a fraudulent statement, we do not believe that the language in the Criminal Information is dispositive as to Respondent’s state of mind. We conclude that Disciplinary Counsel gathered the available evidence regarding Respondent’s state of mind and that the evidence is not sufficient to establish by clear and convincing evidence that Respondent altered the email for his own personal gain or to intentionally mislead or deceive his colleagues or the FISC.

An unusual point on timing

Respondent entered a guilty plea on August 19, 2020, and on August 25, 2020, reported his plea to the Clerk of the D.C. Court of Appeals and the Board on Professional Responsibility. See Paragraphs 4.(2), 12 & n.2, supra. On that same date, he also reported it to Disciplinary Counsel. See Paragraph 12, supra. Disciplinary Counsel did not promptly report the plea to the Court of Appeals, but eventually reported it to the Court in January 2021, and the Court issued an order suspending Respondent on February 1, 2021. Petition at 9. On February 3, 2021, Respondent timely filed the 14(g) Affidavit stating, inter alia, that he had not practiced law since September 21, 2019, and had not had any clients since September 21, 2019. See 14(g) Affidavit, Clinesmith, Board Docket No. 20-BD-052, at 2. The parties agree that Respondent had not practiced law since his guilty plea (August 19, 2020). Petition at 10.7

The Hearing Committee agrees that having Respondent’s suspension run nunc pro tunc from August 25, 2020 is justified. While it is unusual for a suspension to run from a date earlier than the interim suspension, the Court has recognized it to be appropriate in certain cases. In those instances, the respondents were not practicing law during the period of self-suspension and were not at fault for delaying the interim suspensions.

On the delay

The Petition states: “Because Respondent and Disciplinary Counsel were negotiating this petition, Disciplinary Counsel did not promptly report the plea to the Court and initiate a disciplinary proceeding under D. C. Bar R. XI, § 10.” At the limited hearing, Disciplinary Counsel noted difficulties in obtaining and filing original certified copies of the plea (as required) due to pandemic restrictions. Tr. at 18. Whatever the reasons for the delay by Disciplinary Counsel, Disciplinary Counsel agrees that Respondent was not at fault for Disciplinary Counsel’s delay in notifying the Court, and thus, the delay in the imposition of the interim suspension. Tr. at 19.

If adopted, the effect of the recommendation would reinstate Respondent as of August 25, 2021. (Mike Frisch)