Consent Accepted In Clinesmith Matter

The District of Columbia Court of Appeals accepted the proposed consent discipline of a one-year suspension of former FBI attorney Kevin Clinesmith.

In this disciplinary matter, Hearing Committee Number Four (the Committee) recommends approval of an amended petition for negotiated attorney discipline. See D.C. Bar R. XI, § 12.1(c). The amended petition is based on Respondent’s guilty plea to one count of making a false statement in violation of 18 U.S.C. § 1001(a)(3) for his actions in modifying a document while employed by the Federal Bureau of Investigation (FBI) as Assistant General Counsel in the National Security and Cyber Law Branch of the FBI’s Office of General Counsel. The Committee determined this was a serious crime in violation of D.C. Bar R. XI, § 10(d), but not one involving moral turpitude, either per se or on the specific facts. The Committee concluded that Respondent’s misconduct violated Rule 8.4(b) and (c) of the District of Columbia Rules of Professional Conduct. The Committee determined that the negotiated discipline of a one-year suspension nunc pro tunc to August 25, 2020—the date he self-reported his conviction to Disciplinary Counsel—was not unduly lenient.

Having reviewed the Committee’s recommendation in accordance with our procedures in uncontested disciplinary cases, see D.C. Bar R. XI, § 12.1(d), we agree this case is appropriate for negotiated discipline and the proposed sanction is not unduly lenient or inconsistent with dispositions imposed for comparable professional misconduct.

As noted above, because there is no proof of fitness requirement, the functional effect of the order is to reinstate Respondent from his interim suspension.

The details of the conduct are set forth in the Hearing Committee Report.

The committee noted with respect to nunc pro tunc issue

When discipline is imposed on an attorney who already is suspended on an interim basis, the sanction typically will run nunc pro tunc to the effective date of the interim suspension, as long as the attorney promptly files the affidavit required under D. C. Bar Rule XI, Section 14(g) (“14(g) Affidavit”).

In this instance, the parties agree that the suspension should run from a date prior to the interim suspension – from August 25, 2020, “the date on which Respondent promptly self-reported his guilty plea to Disciplinary Counsel and the Board on Professional Responsibility.” Petition at 9.

…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 suspension.

The committee also cites In re Goldberg, a 1983 reciprocal matter of (in my opinion) dubious precedential value in light of subsequent Rule XI changes. 

But fear not as the court notes

This decision is non-precedential. Please refer to D.C. Bar R. XI, § 12.1(d) regarding the appropriate citation of this opinion

The per curiam order came from a panel consisting of Associate Judges Glickman and Deahl and Senior Judge Nebeker.

Editor’s note: There is a long and somewhat tortured history of credit for time served on interim suspension in  D.C.

While I am reasonably well qualified to tell that story, it is hard to imagine a more boring subject. (Mike Frisch)