The Meddlesome BPR

An interesting and potentially significant oral argument before the District of Columbia Court of Appeals yesterday where the Board on Professional Responsibility has recommended rejection of a proposed consent discipline.

At its core, the ultimate issue is whether Disciplinary Counsel has any meaningful discretion where there is uncertainty as to the facts or governing law in a particular matter. 

The case involved a trust account that fell below the required balance that Disciplinary Counsel did not view as meriting a misappropriation charge.

The reason appears to be bank charges that respondent believed had been waived (as noted in the consent)

Respondent eventually explained that he believed the bank had agreed not to charge the estate monthly fees or fees to order checks but did so anyway. Because Respondent had not been receiving bank statements, he was unaware of the charges and therefore, did not account for these charges when he wrote checks against the account, causing the overdraft. The bank wrote off the overdraft.

The Board’s conclusion 

We encourage Disciplinary Counsel’s continued use of the negotiated discipline process to efficiently resolve disciplinary cases. We understand that Disciplinary Counsel’s counterparts in other jurisdictions may have more discretion to reach negotiated resolutions with respondents. However, our system requires review, including consideration of the charges that Disciplinary Counsel agreed not to pursue, to ensure that the sanction is not unduly lenient. Disciplinary Counsel has used the negotiated system to great effect, most notably recently in In re Mensah and In re Agwumezie, where it persuaded the Hearing Committee, the Board, and the Court that a three-year suspension with fitness was not unduly lenient in those cases involving reckless misappropriation. Mensah, 262 A.3d 1100; Agwumezie, 262 A.3d 823 (D.C. 2022) (per curiam). There was no question about the misconduct in those cases, and that permitted an analysis of the propriety of the sanction. Here, as in Harris-Lindsey and Burke, because this record contains questions regarding the underlying misconduct, we recommend that the petition be rejected, without prejudice to refiling, following further factual development.

This case appears to be the latest iteration of the Board’s unwarranted hostility toward the reasonable resolution of matters by consent in a system where contested cases take years (sometimes a decade or more) to resolve.

The consent calls for a stayed 30-day suspension.

The Board’s Executive Attorney concedes that what he called “litigation risk”(i.e. uncertainty of outcome) is a legitimate reason to accept a consent sanction.

That’s progress.

If I read the questioning (and I am renowned for misreading), the court is quite concerned about the Board’s overly formalistic approach.

The panel consists of Associate Judges McLeese and Deahl and Senior Judge Washington.

Here’s hoping the consent discipline is accepted by the Court. (Mike Frisch)