Disobeying Child Support Order At Issue In D.C. Recommendation

A Hearing Committee of the District of Columbia Board on Professional Responsibility concluded that the D.C. Rules apply to the conduct of an attorney – only admitted in D.C. – acting pro se before Maryland and Virginia courts.

The choice of law question here is an interesting one. 

D.C. Rule 8.5(b) provides in pertinent part

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows:
      (1) For conduct in connection with a matter pending before a tribunal, the rules to be applied shall be the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise…

As I understand it, the committee concludes as a matter of law that Respondent’s pro se representation in Maryland and Virginia courts does not qualify as a “matter pending before a tribunal.”

Editor’s note: Not sure I agree.

The substantive charges involved his failure to pay child support

Neither the Court of Appeals nor the Board on Professional Responsibility has addressed whether disciplinary charges can be based on an attorney’s failure to pay court-ordered child support. Rule 3.4(c) provides that “A lawyer shall not … [k]nowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”

There is no indication in the D.C. Rules or the Comments whether Rule 3.4(c) was intended to apply to court orders unrelated to the practice of law. The Committee is therefore without guidance on the propriety of imposing disciplinary sanctions for a licensed attorney’s failure to pay child support. The disciplinary rules were designed to “provide a framework for the ethical practice of law.”  But, Ms. Allen filed the complaint to force Respondent to pay child support, not to sanction conduct committed by an attorney representing a party in a court of law. Tr. 123. As all lawyers, including Respondent, are subject to the same range of enforcement mechanisms as non-lawyers, the Committee questions the need to add discipline as an additional enforcement mechanism.

Disciplinary systems are also ill suited to address issues surrounding deteriorating relations between the parents, such as arose in this case. The factors typically considered in mitigation in disciplinary proceedings are far different than those that might be applicable in child support cases. Further, disciplinary systems are ill equipped to balance the competing claims that Respondent failed to pay required support and that Ms. Allen withheld visitation in an effort to force Respondent to pay support. Family courts, and related entities, were created to address these issues and have the expertise to address them. Attorney disciplinary systems do not.

 Finally, it is difficult to see the difference under the D.C. Rules between the failure to pay child support and the failure to pay a civil judgment in a malpractice or other tort case, or in contract litigation. In all these cases, the attorney has presumably not obeyed an order of the Court as well.

However, ODC has pointed the Committee to several cases in other jurisdictions where lawyers have been sanctioned for failure to pay child support. In addition, the Court of Appeals has imposed reciprocal discipline in cases involving foreign sanctions for not paying child support.38 Since D.C. Bar Rule XI authorizes imposing reciprocal discipline only where the misconduct in another jurisdiction constitutes misconduct in the District of Columbia, see Rule XI, §11(c)(5), the Committee feels constrained to conclude that discipline can be imposed for the failure to pay child support. Thus, we turn to the question of whether ODC has established a violation of that Rule by clear and convincing evidence.

Answer in the affirmative

The bottom line is that Respondent knew what his child support obligations were and that he did not satisfy them. Further, he did not make them to VDCSE or MOCSE as required. ODC is not required to prove more to establish that he “knowingly disobeyed” a Court order. Accordingly, the Committee concludes that ODC has established by clear and convincing evidence that Respondent violated Rule 3.4(c).

The committee found violations of Rules 8.1 and 8.4(c) and (d).

Sanction

As this is a case of first impression in this jurisdiction, there are no Court decisions which provide clear guidance as to the appropriate sanction.

…the Committee believes ODC’s recommendation of a one-year suspension, with all but 60 days stayed in favor of three-years of probation is close to the appropriate sanction.  However, the Committee believes that the 60-day initial suspension is too short. Respondent’s efforts to evade ODC’s questions during the hearing and his insistent filing of unauthorized pleading warrant a 90-day initial suspension.

The report and recommendation is linked here. (Mike Frisch)