No Expert Needed

The District of Columbia Court of Appeals has imposed a six-month suspension with fitness, upholding findings of ethics violations in multiple matters

On the issue of sanction, the Board agreed with the Hearing Committee that Mr. Butler’s repeated misconduct involving multiple clients “over a period of three years warrants a lengthy suspension.” The Board recommended against a stay of the suspension, however, explaining that Mr. Butler’s conduct did not appear to be a deviation from his typical legal practice. The Board further found several aggravating factors: Mr. Butler neglected his clients and responsibilities to the court for an extended period of three years; Mr. Butler’s conduct did not improve despite being aware of Disciplinary Counsel’s investigation; and Mr. Butler’s clients had “known vulnerabilities.” The Board found no mitigating circumstances other than Mr. Butler’s lack of prior disciplinary history.

Finally, regarding the fitness requirement, the Board expressed serious doubt about Mr. Butler’s ability to follow the ethical rules. The Board noted Mr. Butler’s repeated misrepresentations that he had taken remedial actions to improve his responsiveness to the courts. The Board also emphasized the gravity and pervasive nature of Mr. Butler’s conduct. Considering all of the circumstances, the Board recommended that Mr. Butler be suspended for six months with a requirement that he demonstrate fitness before being reinstated.

Respondent’s contentions

Mr. Butler raises three procedural objections. First, he argues that the Hearing Committee was required to conduct separate hearings with respect to Counts I and II. We disagree. This court has regularly permitted the consolidation of separately 13 docketed matters involving different incidents for decision by a single hearing committee. See, e.g., In re Hines, 482 A.2d 378, 383 (D.C. 1984) (per curiam) (“[T]he simultaneous consideration by one hearing committee of all the charges brought against respondent was well within the committee’s power. . . . It is not unusual for a single committee to weigh at one time charges against an attorney stemming from his dealings with more than one client; indeed, such cases are almost routine.”). Moreover, Mr. Butler has made no plausible claim of prejudice.

Second, Mr. Butler suggests that the testimony of an expert was required to demonstrate that his handling of some of his clients’ matters lacked competence. We disagree. Rather, we hold that no special expertise was required to permit the Hearing Committee and the Board to determine whether Mr. Butler’s conduct was lacking in competence. Cf., e.g., In re Winstead, 69 A.3d 390, 397 n.9 (D.C. 2013) (Bar Counsel was not required to call expert witness because whether respondent’s communications were false or misleading did not “require[] technical or specialized knowledge”); Liu v. Allen, 894 A.2d 453, 460 (D.C. 2006) (“[A]n attorney’s negligence sometimes may be so clear, even if an explanation is attempted, that expert testimony is superfluous and the attorney even may be found negligent as a matter of law.”) (internal quotation marks omitted).

Third, Mr. Butler suggests in passing that an opinion rendered by one of the bankruptcy judges was hearsay. Mr. Butler does not actually present an argument as to why the evidence at issue was inadmissible in a disciplinary proceeding. See generally, e.g., In re Kennedy, 605 A.2d 600, 603 (D.C. 1992) (per curiam) (“Disciplinary hearings are not governed by strict rules of evidence.”). Because Mr. Butler has not presented an argument on this point, we decline to consider the point. See generally, e.g., Miller v. United States, 209 A.3d 75, 80 (D.C. 2019) (declining to address issue that was not adequately briefed on appeal).

Sanction

We agree with the Board that Mr. Butler’s repeated misconduct, involving eight matters over a period of three years, warrants an unstayed six-month suspension. See, e.g., In re Lyles, 680 A.2d 408, 408-09 (D.C. 1996) (per curiam) (imposing unstayed six-month suspension with fitness requirement based on attorney’s lack of competence and neglect in four bankruptcy matters as reflected in attached report and recommendation).

We also agree with the Board’s recommendation of a fitness requirement. “To require proof of fitness as a condition of reinstatement after suspension, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney’s continuing fitness to practice law.”

…Essentially for the reasons stated by the Board, we agree that those factors support imposition of a fitness requirement in this case. Over a period of several years, Mr. Butler repeatedly failed to keep his clients informed, respond to court notices, file timely and proper documents, cure deficient filings, and attend court-ordered appearances. That pattern of conduct prejudiced multiple clients and leaves us with a serious doubt as to Mr. Butler’s fitness to continue practicing law. See, e.g., In re Mintz, 626 A.2d 926, 927 (D.C. 1993) (per curiam) (citing cases in which court imposed fitness requirement in cases involving “gross and persistent negligence of client matters”).

(Mike Frisch)