Fitness Requirement Imposed

The District of Columbia Court of Appeals imposed a 30-day suspension with fitness based on findings of failure to maintain records, commingling and serious interference with the administration of justice.

The court noted with respect to proceedings below

On the issue of sanction, the Hearing Committee found that Mr. Doman did not knowingly misrepresent any fact in his testimony. Based on the sole violation it viewed as having been established, the Hearing Committee recommended that Mr. Doman be reprimanded.

In a concurring opinion, two members of the Hearing Committee were very critical of the Office of Disciplinary Counsel in general and the Office’s handling of this case in particular.

And

On the issue of sanction, the Board found as an aggravating factor that Mr. Doman gave intentionally false testimony to the Hearing Committee when he claimed that the transaction spreadsheet was created by TD Bank. Considering all of the circumstances, the Board recommended that Mr. Doman be suspended from the practice of law for thirty days.

Finally, the Board expressed the view that the concurring opinion of the Hearing Committee was “gratuitous,” “improper[,] and wholly unhelpful.”

The court rejected Respondent’s various claims

Mr. Doman raises an extensive array of challenges to Disciplinary Counsel’s handling of the investigation that led to the disciplinary charges against him. Among many other things, Mr. Doman argues that Disciplinary Counsel (1) lacked authority to further investigate an overdraft that was the bank’s error; (2) “illegally” subpoenaed trust account records from the bank; (3) impermissibly directed interrogatories to Mr. Doman during the investigation; (4) made unreasonable demands for “privileged and confidential” documents; (5) retaliated against Mr. Doman when Mr. Doman refused to comply with unreasonable demands for documents and information; and (6) lacked probable cause to bring any charges against Mr. Doman, instead bringing charges that were “not supported by any evidence.” We see no adequate basis for those arguments.

Ultimately

given that we uphold a number of the charges brought by Disciplinary Counsel, we obviously do not agree with Mr. Doman that all of the charges were “not supported by any evidence.”

False testimony

As the Board explained, Mr. Doman repeatedly testified that the bank had created the spreadsheet, so Mr. Doman’s testimony on that point was not a temporary memory lapse or an inadvertent slip of the tongue. Moreover, Mr. Doman was in a position to know whether he or the bank created the document, and there is no suggestion that he had any reason to be confused on the point or to have suffered a memory lapse. Under the circumstances, we conclude that there was substantial support in the record for the Board’s finding by clear and convincing evidence that Mr. Doman’s testimony to the Hearing Committee about the spreadsheet was intentionally false.

Fitness requirement (not sought by Disciplinary Counsel or recommended by the Board)

Three considerations, taken together, lead us to conclude that a fitness requirement is warranted in this case. First, as the Board noted, Mr. Doman has not shown any appreciation for the wrongfulness of his conduct. Mr. Doman’s lack of appreciation for the wrongfulness of the conduct has continued before this court. Although we view some of Mr. Doman’s arguments before this court as reasonable, many other of Mr. Doman’s arguments before this court do not seem reasonable. See generally, e.g., In re Lattimer, 223 A.3d 437, 453 (D.C. 2020) (per curiam) (stating that respondent’s “failure to acknowledge wrongdoing and accept responsibility pervades his arguments to this court”). Mr. Doman’s “adamant refusal to accept responsibility” is an important factor providing support for imposing a fitness requirement. Id.; see also Bailey, 283 A.3d at 1211 (stating that whether attorney recognizes seriousness of misconduct is factor to be considered in determining whether to impose fitness requirement).

Second, we have upheld the Board’s finding that Mr. Doman gave intentionally false testimony before the Hearing Committee. As we have emphasized, “an attorney who presents false testimony during disciplinary proceedings clearly does not appreciate the impropriety of his or her conduct.” Cleaver-Bascombe, 892 A.2d at 412 (brackets and internal quotation marks omitted). That conduct too provides substantial support for imposition of a fitness requirement. See, e.g., In re Bradley, 70 A.3d 1189, 1196 (D.C. 2013) (per curiam) (imposing fitness requirement where respondent gave intentionally false testimony to Hearing Committee; “[T]his court has been especially supportive of fitness requirements when a respondent’s conduct evinces indifference (or worse) toward the disciplinary procedures by which the Bar regulates itself, such as intentionally misleading Bar Counsel during its investigation.”) (brackets and internal quotation marks omitted).

Third, we have upheld the Board’s determination that Mr. Doman seriously interfered with the administration of justice by unreasonably refusing to provide documents and information in response to Disciplinary Counsel’s subpoenas and written questions. That conduct also provides substantial support for imposition of a fitness requirement. See, e.g., Naegele, 225 A.3d at 995 (“In the District of Columbia, the failure to cooperate with Disciplinary Counsel is its own form of misconduct, because of the deleterious effect of withholding potentially important evidence and the failure to respect the investigatory and fact-finding authority vested in the Board on Professional Responsibility. . . . [W]hen an attorney fails to respond to a request for information from Disciplinary Counsel without asserting in writing the grounds for such refusal . . . that attorney has violated Rule 8.4(d) of the D.C. Rules of Professional Conduct . . . . Typically, the sanction for such misconduct is a 30-day suspension, with a fitness requirement for reinstatement.”).

Associate Judges McLeese, Shanker and Howard were on the per curiam opinion.

Notably – or regrettably – the bar investigation involved two docketed matters that were commenced in 2010 and 2012.

Postscript on the set-to below

The Board report is linked here.

While we find no bias reflected in the Hearing Committee’s report and recommendation, the concurring opinion’s discussion of personal views and extrajudicial facts is improper and wholly unhelpful. Discussion of facts outside of the record cannot be allowed to affect decisions in a disciplinary proceeding. Here, we do not find that the concurring opinion’s discussion of personal views and extrajudicial facts affected the Hearing Committee’s findings. But even such gratuitous discussion risks the perception and, as demonstrated here, invites express allegations of bias in favor of one party or another that can undermine confidence in the disciplinary system.

The Hearing Committee report’s concurring opinion observation

While it may be presumptuous to say this, I know it to be a widely held view of members of our Bar that Disciplinary Counsel is difficult to deal with and overzealous in pursuit of minor transgressions and mere mistakes. The disciplinary system, in the opinion of this longtime member of the Bar and the Hearing Committee, should be designed to find the truth and to protect the public, but also to be respectful of the members of the Bar who come into its processes. In this regard I would hold Office of Disciplinary Counsel with its fuller understanding and experience with the system, to a higher standard of conduct in disciplinary proceedings, than Respondents who are at a disadvantage in navigating through the difficulties of defending themselves while conducting a separate workload on behalf of clients.

(Mike Frisch)