April 26, 2007
Cherry Blossom Time in the Nation's Capital
The D.C. Court of Appeals issued an opinion today that demonstrates how the applicable standard of review impacts on the outcome of attorney discipline cases. The matter involved two lawyers, one prosecuted in Maryland, the other in the District of Columbia, for a course of conduct where lawyer Wiggins advised lawyer Pennington that it was ethically permissible to deceive her clients after the clients' claim had been dismissed.
Pennington was disbarred for her deceitful conduct in Maryland. The D.C. Board recommended a 30 day suspension with automatic reinstatement as reciprocal discipline. The court rejected this incomprehensible leniency and ordered a two-year suspension with fitness. The court (and not for the first time,see linked cases here and here) took the Board to task because it "re-characterized the misconduct in a manner forbidden [by the reciprocal discipline rules]." In essence, the Board improperly imposed its own de novo judgment of the misconduct and ignored or obscured the central findings of Maryland's highest court.
As to Wiggins, the court accepted the lenient recommendation of a 60 day suspension with 30 days stayed in favor of probation and completion of a CLE ethics course. Citing the rule that makes the Board's proposed sanction presumptively correct "although the matter is not free from difficulty", the court deferred to the Board's judgment.
Once again, it's good to be a dishonest lawyer in the District of Columbia, with the sympathetic understanding of the "Board on Professional Responsibility." (Mike Frisch)
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You must have realized that you would get a comment for me on this, because I think that a two year suspension is way too harsh in this situation.
But before I get to my explanation, there's much that I don't understand about this case. First, it seems as if the complaint was rejected due to a clerical error, i.e., the clerk assigned the same docket number to both cases. But it seems to me that if the complaint reached the court, it should have been deemed filed, or at least lodged for purposes of the SOL. So I'm not sure why the attorney gave up on the case so quickly. Second, how did a guy who was a partner at a prominent DC firm think that the lawyer doesn't have to disclose that a case was dismissed -and why did he proceed pro se before the bar? (indeed, why did either go pro se? Did their malpractice insurer deny defense coverage - or did they not have the money to hire a lawyer? I think not being represented by counsel, more than anything else, contributed to the harshness of the sanction) Finally, who blew the whistle on these lawyers? The client herself was satisfied with her attorney.
As to the merits, I think this lawyer just panicked, and to complicate matters, she was ill advised by the person she consulted with further lead her astray. The cover up and lies were dishonest, but I don't think the lawyer deserves to lose her career, which is the practical effect of a two year suspension. (I am assuming that this was a first offense, I didn't notice from the opinion. I'd feel differently, of course, if there was a history of violations).
There are a couple of lessons to be learned from this case for other lawyers, which I'll save for a post at MyShingle.
Posted by: Carolyn Elefant | Apr 27, 2007 3:07:58 PM