Dissemble Defined

The District of Columbia Court of Appeals rejected a claim of delay as a bar to disciplinary sanctions

In this bar disciplinary matter, the District of Columbia Board on Professional Responsibility (“Board”) concluded in a Report and Recommendation (“Report”) that Respondent Kenneth L. Blackwell violated D.C. R. Prof. Conduct 3.4(c), which prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal, by failing to pay court-ordered child support, and Rule 8.1(a), which prohibits a lawyer from knowingly making a false statement of fact in connection with a disciplinary matter, by knowingly providing a false response to a question Disciplinary Counsel posed during its investigation. The Board recommended a sanction of a six-month suspension with all but 60 days stayed in favor of three years of probation.

The bar complaint had been filed in 2016; if seven years from soup to nuts prevented discipline, no D.C. lawyer would ever be sanctioned.

Disciplinary Counsel filed charges three years after receiving the complaint.

The court did not find prejudice as to claimed lost evidence

We are not persuaded by Mr. Blackwell’s argument that Disciplinary Counsel’s delay in prosecuting the case deprived him of due process. 

Failure to pay court-ordered child support as an ethical violation

Before this court, Mr. Blackwell concedes that Rule 3.4(c) applies to an attorney ordered, as a party and not an advocate, to make child support payments, and that he therefore violated Rule 3.4(c) between 2007 and 2009; he simultaneously asserts, however, that he substantially complied with his child support obligations by directly paying Ms. Allen much of what he owed.

Notably (although conceded here) this is the first case imposing discipline for failure to pay child support.

No prejudice from delay

we conclude that Mr. Blackwell has failed to show that the delay in this case caused him substantial prejudice warranting dismissal or constituted a violation by Disciplinary Counsel of Rule 3.8(d).

Statements in response to complaint

We need not decide here whether the Board was free to find in the first instance, without any findings of subsidiary fact by the Hearing Committee, whether Mr. Blackwell had possessed the requisite mental state for a Rule 8.1(a) violation. (citations omitted) In our view, contrary to that of the Board, the Hearing Committee did make a finding of fact regarding Mr. Blackwell’s mental state when he responded to the question at issue. The Hearing Committee found (with emphases added): “Respondent knew [Disciplinary Counsel] was asking about the status of his compliance with court-ordered support payments. But he dissembled his response to [Disciplinary Counsel], despite his prior admission before the Maryland Court that he had not complied with its order. The Committee concludes [that Disciplinary Counsel] has established by clear and convincing evidence that Respondent knowingly provided a negative answer to its question whether he had willfully failed to pay child support as required by the court orders, and thus violated Rule 8.1(a).” “Dissemble” means “to hide under a false appearance” or to “conceal facts, intentions, or feelings under some pretense.” Dissemble, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/dissemble; https://perma.cc/9EDXT47K (last visited June 21, 2023).4 A natural reading of the Hearing Committee’s finding, then, is that Mr. Blackwell “dissembled”—concealed facts under a pretense—after having previously made a contrary admission and therefore knowingly provided a false response. We see no basis in the record to disturb that factual determination, and we are satisfied that it supports a conclusion that Mr. Blackwell violated Rule 8.1(a).

Probation conditions

Mr. Blackwell objects to the recommended conditions of probation, arguing that this court should not require payment of arrears and in particular should not require such payment to VDCSE. More specifically, Mr. Blackwell contends that (a) such a requirement would illegally modify a Maryland court order and offend due-process principles; and (b) the amount of arrears is in dispute and resolution of that dispute may require litigation in court. We do not share Mr. Blackwell’s concerns. The conditions we adopt allow Mr. Blackwell to seek modification of his child support obligations and permit proof of payment either from VDCSE or through other evidence, which could include payment to Maryland.

(Mike Frisch)