32 Days Of Hearings

The District of Columbia Board on Professional Responsibility ordered an informal admonition in what well have been the longest hearing in D.C. Bar history in terms of number of days

This matter arises out of Respondent’s conduct in two court-appointed guardianships. Disciplinary Counsel alleged that Respondent committed 62 violations covering four D.C. Rules of Professional Conduct: 1.5(a) (unreasonable fee), 3.3(a)(1) (knowingly making a false statement to a court), 8.4(c) (dishonesty, deceit or misrepresentation), and 8.4(d) (serious interference with the administration of justice). A 32-day hearing ensued (spanning from November 10, 2020 until April 28, 2021) and, following briefing, an Ad Hoc Hearing Committee unanimously recommended that Disciplinary Counsel had proven a violation of Rule 1.5(a) by clear and convincing evidence. A majority further recommended that Disciplinary Counsel had proven a violation of Rule 8.4(c) and a violation of Rule 8.4(d); the dissent, by contrast, would not find a violation of either Rule.

The board, however, rejected the Rule 1.5(a) violation.

A week after the Hearing Committee issued its Report and Recommendation, the Court of Appeals found a violation of Rule 1.5(a) in a different case because the respondent’s overbilling, which included repeated double-billing and multiple erroneous charges, suggested “that he was, at the very least, negligent.” Bailey, 283 A.3d at 1208 (rejecting the argument that Rule 1.5(a) prohibited only intentional overcharges). Indeed, in Bailey, Disciplinary Counsel had “sought to prove only that the overbilling was ‘unreasonable’ or negligent so as to constitute a violation of Rule 1.5(a).” Id. at 1208 n.4. Having the benefit of Bailey, which the Hearing Committee did not have, and understanding Bailey to hold that less-than-negligent overcharges do not violate Rule 1.5(a), we find no Rule 1.5(a) violation because the Committee found that the single instance of over-billing was the result of a data entry error, not negligence.

Conduct that “seriously interfered” with the administration of justice

We agree with the Hearing Committee majority. There is no question that Respondent’s conduct (1) was improper (she failed to make timely filings), and (2) bore on identifiable cases (the Toliver-Woody and Williams probate cases). Whether the misconduct had a more than de minimis effect on the administration of justice, however, is a closer question. Not every late filing, or even several late filings, necessarily interfere with the administration of justice in more than a de minimis way. But here there is a pattern of lateness. Respondent was late on seven of the thirteen Guardianship Reports filed in Toliver-Woody, was late in filing the Suggestion of Death (or notifying the Court of the ward’s passing) in both cases, was late in filing the Guardianship Plan in Williams, and was late in filing one of the two Williams Guardianship Reports. Her late filings led to three summary hearings (a fourth hearing was cancelled), requiring the Probate Division staff to prepare for three hearings necessitated solely by Respondent’s failure to meet her deadlines. We recognize that Respondent is not unique in her failure to file reports on time, and that many other Probate Division practitioners fail to meet their court-imposed deadlines. We further recognize that, as the dissent noted, Respondent’s 11 dilatory filings were spread over an almost ten-year period.6 But neither of these factors diminishes Respondent’s misconduct and the resulting steps the Division had to take.

The board directed Disciplinary Counsel to issue the admonition. (Mike Frisch)