Mis-Calendared

An attorney’s failure to timely appear for a criminal trial did not seriously interfere with the administration of justice, concluded  the District of Columbia Board on Professional Responsibility.

The Board, having reviewed the record, concurs with the Hearing Committee’s factual findings as supported by substantial evidence in the record. We also conclude that the Hearing Committee’s well-developed conclusions of law are supported by clear and convincing evidence.

Disciplinary Counsel had not appealed from that finding of a hearing committee (attached to the board report)

For reasons that are not clear in the record, Respondent believed that the trial was set for June 12, 2019, one day later. See Tr. 56-66 (Respondent); DCX 8 at 2-3. Respondent gave conflicting explanations as to how he mistakenly believed that the trial was set for June 12. He testified that he had recorded the wrong date on his phone and the correct date on his paper calendar (Tr. 54-55), that he did not know whether he recorded the correct date anywhere (Tr. 56-57, 60-61), that he recorded the correct date on one calendar or the other (id.), and that he had accurately recorded the June 11 trial date on his cell phone, in court, when the court originally scheduled the trial. Tr. 65. We cannot determine which of these explanations is accurate. But we credit Respondent’s testimony that he mistakenly believed that the trial was scheduled for June 12, even though he had been present in court when Judge Broderick set June 11 as the trial date.

His client had called him after he did not appear

Respondent called Judge Broderick’s chambers, confirmed that the case was set for trial that day, left the CLE course, and ran to the courthouse.

The trial ended up being continued but

On September 23, 2019, Judge Broderick filed a complaint with Disciplinary Counsel, asserting that there were “discrepancies” in the information Respondent had given to the court and his client.

Despite inconsistent explanations, no foul

Here, Respondent’s mistake was in mis-calendaring the trial date. There is no evidence that his failure to appear was due to anything other than his misunderstanding regarding the trial date.

Thus

Disciplinary Counsel does not specifically address how Respondent’s failure to appear on time was a more than de minimis interference with the administration of justice. Although the trial was not held on June 11 as scheduled, there is not clear and convincing evidence that the continuance was more than a de minimis interference with the administration of justice. As this was a bench trial, the court did not have to call in jurors. The prosecutor was present in court, but her witness, a police officer, was “in the field” and was to be called in for the trial. Thus, the witness was not inconvenienced. We also note that the prosecutor did not contest the continuance, and that the case was later resolved with a plea bargain, instead of a trial.

Having concluded that Respondent’s tardy appearance did not actually interfere with the administration of justice in more than a de minimis way, we consider whether there is clear and convincing evidence that his conduct at least had
the potential to cause such interference. In re Uchendu, 812 A.2d 933, 941 (D.C. 2002) (“All that Rule 8.4(d) requires is conduct that taints the process or potentially impact[s] upon the process to a serious and adverse degree.” (alteration in original) (emphasis added) (internal quotations omitted)). Because there is not clear and convincing evidence that the trial could not have been held on June 11 after Respondent’s tardy appearance, we conclude that there is not clear and convincing evidence that his late appearance even potentially interfered with the trial to a serious and adverse degree.

(Mike Frisch)