Litigation Risk Justifies Acceptance of Consent Discipline Agreement

The District of Columbia Board on Professional Responsibility recommends acceptance of a proposed consent discipline agreement that had been approved by a hearing committee over with a dissent of the committee’s public member

An Ad Hoc Hearing Committee recommended that the Court of Appeals approve the parties’ agreed-upon resolution of this matter: Respondent violated D.C. Rules 1.4(a), 1.4(b), 1.5(e), and 8.4(c), and should be suspended for ninety days, with all but sixty days stayed in favor of one year of unsupervised probation and consultation with the D.C. Bar’s Practice Management Advisory Service. The Public Member of the Hearing Committee dissented from the report, concluding that the sanction was unduly lenient. In an October 25, 2024 order, the Court of Appeals noted concerns related to (1) “the division among the Hearing Committee’s members and several of the points made by the committee’s dissenting member” and (2) “the fact that respondent committed this misconduct while on probation in his prior disciplinary matter and where this court stayed his thirty-day suspension in lieu of a one-year period of probation during which time respondent should not engage in any ethical misconduct,” and directed the Board to “provide this court with its views concerning whether the negotiated discipline is appropriate.”

We have reviewed the stipulated facts set forth in the Hearing Committee Report, as well as the issues raised by the Hearing Committee Majority and Dissent in the Confidential Appendices to the Report. The issues raised by the Dissent are significant, and it is possible that in a contested hearing a hearing committee could have concluded that Respondent engaged in intentional dishonesty justifying a more serious sanction. On balance, though, we agree with the Hearing Committee Majority that Disciplinary Counsel (“ODC”) appropriately assessed the litigation risk of proving that Respondent engaged in more serious misconduct, including intentional fraud against his clients. However, we recommend that the Court reject the agreed-upon sanction as unduly lenient because it does not adequately reflect the significant aggravating factor that Respondent engaged in the misconduct at issue here while on probation for prior misconduct.

At issue

The Board agrees with the Majority’s conclusion that there was a substantial risk that ODC could not have established by clear and convincing evidence that Respondent intentionally misstated his own state of licensure or his ability to affiliate with lawyers licensed in Maryland and Virginia. Although the parties stipulated that the Clients “would not have retained Respondent if they had known he was the firm’s only attorney and lacked a license in either relevant jurisdiction” (HC Report ¶ 12), the Dissent does not identify evidence that Respondent intentionally (as opposed to recklessly) provided incorrect information to the Clients on those points. Indeed, Respondent told the Clients he would need to affiliate with a Maryland attorney with the Clients’ matter, did in fact affiliate  with a Maryland attorney and identified that attorney as working for “Lincoln Park Associates” although he failed to specify that the attorney was not employed at Respondent’s  firm and the Clients believed that he was… The fact that Respondent s licensure status was publicly available could have provided further circumstantial evidence that he did not intentionally mislead the Clients on this issue since he presumably would have known that such a fraud would have been easily exposed.

Key reasoning from the hearing committee report

the agreed-upon sanction is a fair result that reflects an arm’s-length compromise between Disciplinary Counsel and Mr. Brammer. Had Disciplinary Counsel prevailed after a hearing, Mr. Brammer could have received a harsher penalty. But in the unlikely event that he prevailed, Mr. Brammer would have received no sanction. The agreed-upon sanction guarantees that Mr. Brammer receives a significant sanction and cuts off the risk that he receives none. And it ensures that Mr. Brammer serves his suspension sooner. Had this matter gone to a hearing, and had Mr. Brammer appealed an adverse result, it could have been months – or – years after the misconduct before Mr. Brammer received his sanction. The agreed-upon sanction – which is well within the range of sanctions issued for violations like Mr. Brammer’s – deters Mr. Brammer from further misconduct, and protects the public, sooner than after a potentially protracted adjudicative process (including appeals).

Spot on.

Having said that, I do applaud the thoughtful contribution and dissent of Public Member Adam Kaufman

Though I have worked with many fine attorneys, I am not myself an attorney. As the public member on the Hearing Committee, it would be much easier for me to go along with the majority. In making this dissent I am guided by the precept expressed in the Report and Recommendation of the Board on Professional Responsibility in In re Justo de Pomar, Board Docket No. 20-ND-002 (BPR Feb. 4, 2022), recommendation approved, 273 A.3d 870 (D.C. 2022) (per curiam), which states that ìthe hearing committee must determine whether Disciplinary Counselís analysis is objectively reasonable. . . . This review must not be a “rubber stamp,” but instead a thorough, objective analysis of Disciplinary Counsel’s evaluation. Justo de Pomar, Board Docket No. 20-ND-002, at 13-14. Unfortunately, the Hearing Committee majority has elected to rubber stamp Disciplinary Counsel’s decision to accept an extremely lenient sanction in this matter without conducting a meaningful objective review of the record. A thorough, objective analysis of the record and the investigative file, as well as my sense of duty to seek justice for the victims, compels me to conclude that the proposed sanction is unduly lenient for many reasons.

Concerns

The Hearing Committee majority believes that Respondent should have to serve only a thirty-day suspension for the current matter, plus thirty days for violation of probation in the previous matter, Mgana, and that he should be reinstated without proof that he has changed his ways. I believe that, based on the facts of the case, the charges made and accepted by Respondent, Respondent’s character, and matters raised in the Dissent Confidential Appendix that warrant further inquiry, the proposed sanction is unduly lenient. Instead, Respondent should serve a longer period of suspension and should not be readmitted until he can demonstrate that he has both the character and competence to practice in accordance with the Rules.

The board report is extensively redacted. 

As a strong advocate in favor of the consent process, I think this is a correct result. (Mike Frisch)