Negotiated Sanction Permitted In Reckless Misappropriation Cases
A significant – and welcome – decision by the District of Columbia Court of Appeals approves a negotiated sanction in a case involving misappropriation of entrusted funds
Respondent Paul T. Mensah and Disciplinary Counsel entered into an agreement pursuant to which Mr. Mensah acknowledged that he recklessly misappropriated entrusted funds in two matters, entered into an impermissible fee-splitting arrangement, and failed to keep proper records. Mr. Mensah and Disciplinary Counsel also agreed to a sanction of a three-year suspension with a requirement that Mr. Mensah demonstrate fitness to practice law before being reinstated. We accept the recommended discipline.
In a system beset by decade-long delays, a flexible approach to consent discipline is an essential salve.
Here, the court takes an important if somewhat hesitant step forward.
The per curiam decision of Associate Judges McLeese and Deahl and Senior Judge Steadman noted the criticism of the en banc decision in In re Addams mandating disbarment in virtually all such cases
The decision in Addams has generated substantial controversy and criticism over the years. See, e.g., In re Gray, 224 A.3d 1222, 1234-35 (D.C. 2020) (referring to Addams as “inflexible and sometimes harsh,” but also explaining rationale for decision) (per curiam); id. at 1225 n.1 (noting that four Board members thought sanction mandated by Addams was too harsh); In re Ahaghotu, 75 A.3d 251, 258-59 (D.C. 2013) (referring to “a continuing current of discontent” with Addams, but noting that Addams was binding on division); In re Pleshaw, 2 A.3d 169, 174-75 (D.C. 2010) (noting “oddity” of result required by Addams but also noting that Addams was binding); In re Bach, 966 A.2d 350, 351-53 (D.C. 2009) (treating Board as implicitly asking court to reconsider Addams, noting that Addams was binding, and quoting statement from earlier case that “[i]ndividual members of this division believe the result Addams dictates in this case is a harsh one”) (ellipses omitted; quoting In re Pels, 653 A.2d 388, 398 (D.C. 1995)); In re Bach, 966 A.2d at 353-57 (Ferren, J., concurring) (urging reconsideration of Addams); In re Berryman, 764 A.2d 760, 765 (D.C. 2000) (noting that Board took position that Addams is “too inflexible”) (internal quotation marks omitted); id. at 774 (Farrell, J., concurring) (declining to endorse Board’s position that Addams is too inflexible); In re Pierson, 690 A.2d 941, 951 (D.C. 1997) (Schwelb & Ruiz, JJ., concurring) (describing rule of Addams as “far too inflexible” and “harsh”)
The court then describes the adoption of consent-discipline procedure
The negotiated-discipline process is designed to encourage efficient and timely resolution of attorney-discipline matters. Disciplinary Counsel argues that, in order to achieve that purpose, the negotiated-discipline process must permit imposition of sanctions that are somewhat less stringent than might otherwise have been required in a contested-discipline cases, at least in a negotiated-discipline proceeding involving reckless misappropriation otherwise controlled by Addams. More specifically, Disciplinary Counsel contends that affording such flexibility will (1) provide incentives for attorneys to agree to negotiated discipline, thereby conserving scarce resources and reducing delay in the disciplinary process; and (2) reflect appropriate recognition of the mitigating nature of an attorney’s willingness to acknowledge misconduct and accept an appropriate sanction. The Board, the Hearing Committee, and Mr. Mensah all support Disciplinary Counsel’s arguments on these points. We are likewise persuaded.
But this does not signal that all constraints on negotiated sanction have been removed
We do not mean to suggest that the sanctions in negotiated-discipline cases may become completely unmoored from the sanctions that would be appropriate in contested-discipline cases. The negotiated-discipline process itself reflects numerous procedural constraints intended to ensure the bottom-line requirement that any sanction imposed be “justified.”
…As the foregoing should make clear, our ruling in this case is narrow. We hold that the negotiated-discipline process in certain circumstances permits some flexibility in determining the sanction to be imposed. In particular, we hold that such flexibility may in certain circumstances permit a sanction of less than disbarment in negotiated-discipline cases involving reckless misappropriation, even if the other circumstances of the case did not rise to the level of “extraordinary circumstances” as that phrase has been understood in the context of contested reckless-misappropriation cases. We express no view as to whether, and if so in what circumstances, the negotiated-discipline process could permit imposition of a sanction of less than disbarment in a case involving intentional misappropriation in the absence of exceptional circumstances.
The difficulty with the last part is that fair minds fairly (and frequently) disagree on whether a particular misappropriation is intentional, reckless or negligent.
I for one am entirely comfortable that a three-year suspension with fitness (disbarment’s closest, warmest cousin) is a fair resolution to avoid years of litigation even in an intentional misappropriation case. (Mike Frisch)