License Renewal Statements Draw Proposed Sanction

The District of Columbia Board on Professional Responsibility recommends a nine-month suspension with fitness for false statements in federal court licensing 

Respondent Kevin J. McCants was admitted to the District of Columbia Bar in 2005. He has also been a member of the bar of the United States District Court for the District of Maryland, having first been admitted in 2009. He was charged with making false statements in applications to reactivate his Maryland federal court bar membership, in that he failed to disclose instances of professional discipline.

Findings of the Hearing Committee

The Hearing Committee found that Mr. McCants shifting and inconsistent justifications for his conduct undermined his credibility. Before the Board, representing himself, Mr. McCants explanations of his conduct were similarly inconsistent. However, during oral argument before the Board, he acknowledged that at least some of his statements were inaccurate, but said, for example: it was a mistake ; an error ; I did it because I guess I was embarrassed ; I know I was wrong.

Sanction

During oral argument, the Board raised the question whether Mr. McCants conduct, taken as a whole, amounted to flagrant dishonesty, thus meriting disbarment. Disciplinary Counsel asserted that such a Board conclusion would be consistent with In re Tun, 286 A.3d 538 (D.C. 2022) (disbarment ordered), and that Disciplinary Counsel would not take exception to a Board recommendation of disbarment because such a finding is within the Boards discretion. However, Disciplinary Counsels Response Brief to the Board characterized the Hearing Committees recommended sanction of suspension with fitness as sound. The Hearing Committees careful analysis of the law and the relevant considerations merits that characterization.

The respondent in In re Tun was disbarred on his third visit to our court for violating our rules of professional conduct (and his eighth time being subject to discipline in our jurisdiction). Id. at 544. The Court found more than 20 years of repetitive, dishonest behavior. Id.

Looking to the Hearing Committees analysis, we do not find the same or comparable misconduct and recidivism.  We conclude that a fitness requirement will ensure that Mr. McCants will not return to the practice of law until he can prove by clear and convincing evidence that he is fit to do so. Moreover, as a matter of fairness, if the sanction of disbarment is to be sought, it is preferable that Disciplinary Counsel raise and litigate that sanction before the Hearing Committee and the Board.

Board Member Michael Tigar authored the report. (Mike Frisch)