Misappropriation Consent Sanction At Issue In D.C.

The oral argument held yesterday in the District of Columbia Court of Appeals in In re Mensah is now available on the court’s web page.

The case involves the tension between the court’s normative sanction of disbarment for intentional or reckless misappropriation and the need to use consent discipline as a consequence of the interminable systemic delays in D.C. bar matters.

The parties propose a consent sanction of a three year suspension with fitness.

The highly engaged  court of Associate Judges McLeese and Deahl and Senior Judge Steadman closely questioned the parties and (in my view) expressed a number of concerns about the proposed disposition.

Judge McLeese noted at the outset the unusual posture of an oral argument in a matter where the parties are in agreement.

My read is that the division may reject the consent disposition as beyond its power in light of the en banc decision in In re Addams.

Perhaps then the parties will seek en banc review of the rejection if my (almost always incorrect) prediction holds.

Disciplinary Counsel Hamilton Fox acknowledges the disconnect between the Addams holding and the consent process but powerfully presents the position that consents are an indispensable tool in a system that allows an attorney accused of misappropriation to practice for several years while fighting the charge.

Here he seeks limited authority to negotiate in cases involving reckless, but not intentional. misappropriation.

Of course, whether misappropriation is negligent, intentional or reckless may often be found in the eye of the beholder.*

Or a three judge division of the court.

In re Addams has an “exceptional circumstances” exception to the mandatory disbarment rule. The court has found such circumstances only where addiction caused the misconduct and there is substantial rehabilitation and in this rather unique case.

The court asked whether prompt recognition of the violation, remedial action and the willingness to accept a three-year suspension was an exceptional circumstance.

The court has not gone en banc in a bar discipline matter since my argument in  In re Elliott Abrams, argued in 1996 and decided in 1997. 

My record as the last disciplinary counsel to argue en banc may be in jeopardy.

* For a stark example, see the New Jersey case posted directly below (Mike Frisch)