What Makes Dishonesty Flagrant?

An  oral argument held yesterday before the District of Columbia Court of Appeals raises an interesting and important question concerning sanctions for violations of Rule 8.4(c) – conduct involving dishonesty, deceit, fraud or misrepresentation.

The Board on Professional Responsibility has recommended disbarment for a host of violations including what it called “flagrant” dishonesty

we have determined also that the evidence is clear and convincing that Respondent testified falsely in several respects during the 2019 hearing. In addition, Respondent’s flagrant dishonesty and indifference toward her clients covered an extensive seven-year period from 2007 to 2014. As stated by the unanimous Hearing Committee, Respondent “always defaulted to the dishonest course of action,” and the repeated misconduct shows that she “lacks the fundamental character necessary to practice law in compliance with the Rules.”

… Although the specific facts of Respondent Johnson’s and Respondent Mazingo-Mayronne’s proven misconduct clearly differ, the misconduct of each is also clearly characterized by prolonged, repeated, and flagrant dishonesty, which “‘reflect[s] a continuing and pervasive indifference to the obligations of honesty in the judicial system.’” In re Pennington, 921 A.2d 135, 141 (D.C. 2007) (quoting In re Corizzi, 803 A.2d 438, 443 (D.C. 2002)); In re Pelkey, 962 A.2d 268, 281 (D.C. 2008) (disbarment for “persistent, protracted, and extremely serious and flagrant acts of dishonesty”). Disbarment is the only appropriate sanction for such flagrant dishonesty.

Sanctions for dishonest conduct in the District of Columbia flow from an en banc decision in a case I prosecuted involving a partner at a prominent D.C. law firm – a former Supreme Court clerk – who had engaged in conduct (later resolved by a misdemeanor plea) that led to an SEC investigation. 

He lied under oath twice before retaining counsel, recanting and disgorging profits from his trading on inside information.

The Board had recommended and a division of the court had imposed a six-month suspension.

Bar Counsel sought rehearing en banc and persuaded the court to increase a six-month suspension to a year with automatic reinstatement.

I had argued (unpersuasively I concede) for the functional equivalent of a fitness requirement. 

I have always believed that the leniency shown in that case has skewed sanctions low in the decades that have followed.

In re Hutchinson (along with another case of mine In re Kersey) are undoubtedly the most significant and oft-cited D.C. cases on bar sanctions along with In re Addams, which was prosecuted by my erstwhile colleague Sam McClendon.

As was its wont back in my day, the Board on Professional Responsibility interpreted Hutchinson to mean that an attorney could never be disbarred for dishonesty unless there was prior discipline.

That peculiar view led to an incremental litigation strategy that ultimately persuaded the court otherwise in another case that I prosecuted In re Goffe

we do not agree with the Board’s and Hearing Committee’s recommended sanctions. The Hearing Committee felt bound by a sanction of suspension concluding that “the Court of Appeals has written that there is no `ceiling on the suspension to be imposed on an attorney who has engaged in dishonest conduct.’ In re Hutchinson, 534 A.2d 919, 925 (D.C.App.1987) (en banc) (emphasis added). The implication is that suspension, not disbarment, is the appropriate sanction for dishonesty, fraud, deceit, and misrepresentation.” The Board also seemed constrained by the lack of attorney dishonesty “cases which impose a suspension longer then a year and a day.”

We do not agree that Hutchinson was intended to limit possible sanctions in attorney dishonesty cases to a maximum three year suspension. As we have previously noted, neither Hutchinson nor Reback “purported to establish a ceiling for misrepresentation cases.” Kennedy, 542 A.2d at 1229. The seriousness and pervasiveness of the pattern of misconduct here is unparalleled in this jurisdiction. Indeed, the misconduct is more severe than the misconduct in Garner, supra, where we concluded, as already noted, that “disbarment is well within the range of sanctions for similar misconduct in the District of Columbia.” Garner, 636 A.2d at 421. The strictness with which other jurisdictions have dealt with similar misconduct is also persuasive. Respondent’s pattern of misconduct, the absence of meaningful mitigating factors, and the need to protect the public and governmental institutions warrant a sanction consistent with Garner.

The Garner series of cases were also mine.

I well remember the day Goffe came out.

I was on the road with a colleague investigating a case. We had gone up to Carlisle PA to interview a witness and she had just dropped me off when the phone rang to give me the good news.

This was years before cell phones and posting of decisions online of course.

The question of dishonesty v. flagrant dishonesty for sanction (read disbarment) purposes has also been the subject of a series of recent decisions in which the Maryland Court of Appeals has retreated from the harsh and formulaic  approach to dishonesty in its In re Vanderlinde decision in 2001.

Because Maryland and D.C. have taken arguably different positions on dishonesty sanctions, there is a line of reciprocal discipline cases exploring the issue.

Most notable is In re Pennington & Wiggins, where the Board proposed reducing a Maryland disbarment to a 30 -day suspension (yes, you read that correctly)

The court was not buying

We part company with the Board, however, in its recommendation that Pennington be suspended for thirty days. That proposal rests, first of all, on an impermissible relitigation by the Board — without benefit of the testimony heard and weighed by the Maryland court — of factual issues resolved against Pennington in the original proceeding. More basically, the Board in effect recharacterized, and in so doing seriously minimized, the misconduct found by Maryland in a manner that cannot be reconciled with Rule XI, § 11 (c).

The court nonetheless reduced the Maryland disbarment to a two-year suspension.

Perhaps the most egregious example of the Board’s “impermissible relitigation” is a case – you guessed it – of mine.

One of the best things the Court of Appeals has ever done in the area of bar discipline is largely remove the Board from the reciprocal discipline process.

Hopefully, the recent focus on dishonesty sanctions in Maryland and D.C. ( jurisdictions with hundreds of not thousands of attorneys admitted in both places) will bring both clarity and harmony to this significant issue. (Mike Frisch)