Rural Internet Delivery Representation Draws Proposed Sanction
An Ad Hoc District of Columbia Hearing Committee has found misconduct in a matter where relatively minor misconduct was exacerbated by subsequent cover up efforts
Disciplinary Counsel charges Kristopher E. Twomey with violating D.C. Rules of Professional Conduct 1.3(c) (reasonable promptness), 1.4(a) and (b) (communication), 4.1(a) (false statement to third person), and 8.4(c) (dishonesty, fraud, deceit, or misrepresentation). The charges arise from Mr. Twomey’s representation of two telecommunications companies that sought to benefit from the Federal Communications Commission’s Rural Digital Opportunity Fund (or RDOF), which helped fund the development of high-speed internet in rural areas. Disciplinary Counsel contends that Mr. Twomey committed each charged violation and should be suspended for two years as a sanction for his misconduct. Mr. Twomey contends that Disciplinary Counsel failed to prove any rule violations by clear and convincing evidence and that, if it did prove any violations, he should receive no more than an informal admonition.
As set forth below, the Hearing Committee finds that Disciplinary Counsel has proven violations of D.C. Rules of Professional Conduct 1.3(c), 1.4(a) and (b), 4.1(a), and 8.4(c) by clear and convincing evidence and recommends that Mr. Twomey be suspended for two years.
Jurisdiction
Mr. Twomey contends that the District of Columbia attorney-discipline system lacks jurisdiction over his filing of documents with state regulatory commissions outside of the District and Massachusetts, the only jurisdictions in which he is licensed to practice law, because he was acting as a “regulatory consultant” rather than as an attorney. (See Twomey Br. 2–3.) Mr. Twomey is incorrect. He was hired in his capacity as a lawyer to provide legal services.
The representation
In January 2020, the Federal Communications Commission established the Rural Digital Opportunity Fund to provide financial support to internet-service providers for the deployment of high-speed broadband networks in rural areas of the United States. (DCX 5 ¶ 5, at 3; Tr. 24 (Coran).) The FCC adopted bidding procedures for the RDOF that included a reverse auction in which private businesses competed against each other by committing to provide broadband services to unserved communities in exchange for various levels of financial support. (DCX 6.) The FCC announced the winning bidders in late 2020. (DCX 8.)
The client (“LTD”) had winning bids in 15 states including three at issue here; the representations involved the timing of the neceassary filings
The false information Mr. Twomey provided regarding the status of applications filed in California, Nebraska, and North Dakota was material to LTD’s request that the FCC waive the June 7 deadline for obtaining ETC [“Eligible Telecommunication Carrier”] designations, since LTD needed to show that it was making a good-faith effort to comply with that deadline. (Tr. 88 (Coran); Tr. 376–77 (Hauer).) Mr. Twomey understood the importance of this information. (Tr. 417 (Twomey).)
As a result
The FCC eventually denied LTD’s request to waive the June 7 deadline for obtaining ETC designation in California, Nebraska, and North Dakota. (Tr. 88–89 (Coran).) The FCC determined that LTD’s delay in filing its applications in those states was unwarranted and that it had provided no compelling rationale to extend the deadline. (DCX 28 at 4 (California); DCX 34 at 4 (Nebraska and North Dakota).) LTD sought reconsideration of these denials, but those requests were denied. (Tr. 91–93 (Coran); see DCX 36.)
There were also issues with filings in Tennessee and Texas for a client Monster Broadband
Monster relied on Mr. Twomey to provide it with accurate information about the matters he was handling. (Tr. 324 (Baker).) Mr. Twomey gave Monster no indication during the representation that he would do otherwise. (Id.) Monster was “betrayed” by Mr. Twomey’s actions, and Mr. Twomey’s conduct has left a “black mark” on its impression of lawyers generally. (Tr. 324–25 (Baker).)
Misconduct
At bottom, this case is about a lawyer’s efforts to make up for missing or nearly missing material deadlines for clients. To be sure, Mr. Twomey could have done better in keeping LTD and Monster informed about the work he was doing for them and the prospect that significant deadlines might not be met and taking prompt steps to meet those deadlines. But Mr. Twomey compounded his Rule 1.3 and 1.4 violations by committing significant acts of dishonesty, the most serious of which was the manufacturing of a filing receipt and presenting that to his co-counsel and an agency of the federal government.
Proposed sanction
the Hering [sic] Committee finds that Mr. Twomey violated District of Columbia Rules of Professional Conduct 1.3(c), 1.4(a) and (b), 4.1(a), and 8.4(c) and recommends that he be suspended from the practice of law for two years.
(Mike Frisch)