Wednesday, April 8, 2009

A Controversial Consent Disposition

As newly-allowed negotiated dispositions begin to work their way through the D.C. bar disciplinary system, cases are emerging that demonstrate the problems as well as the benefits of the process. A recent hearing committee report accepts a consent to a 30 day suspension in a case where the misconduct was well over a decade old and had been the subject of a bar counsel investigation since 2002.

The attorney was paid to perform legal services for the Interim Government of Rwanda and the then ambassador to the United States. He deposited the advanced fee of $55,000 into his trust account. After taking power, the current Rwandan government sought a refund of unearned fees of about $5,000 and the attorney refused to tender the refund; rather, he disbursed most of the funds for services provided to the former ambassador. The current government sued the attorney in federal district court and won compensatory and punitive damages. A finding that he had breached fiduciary duties was affirmed on appeal.

The hearing panel majority:

The circumstances of this matter are, to say the least, extraordinary. This was not the situation of a corporate takeover or a peaceful transfer of regime power. Respondent was being asked to return Rwandan funds to a new government of Rwanda that he believed to be the hated enemy of the Rwandan leaders who had paid him the funds in the first place.

The majority wondered what a lawyer's ethical duty would be if he held the funds for Fort Sumter in 1861 and received a demand for payment from General P.G.T. Beauregard after the fort had surrendered.

The lawyer did not believe that the new government was his client, a belief that proved to be "wrong as a matter of law." While the actions were improper, the majority deferred to the recommendations of counsel, noting that the conduct was remote in time, had taken place prior to a significant decision interpreting Rule 1.15 in such circumstances, and that the lawyer was a decorated Marine Vietnam veteran with a 30 year unblemished career.

The hearing panel chair would reject the consent disposition: "...the Court of Appeals should reject this Petition for Negotiated Disposition and explain in its Opinion that the basic law associated with with lawyer discipline was not changed by adopting [the board rules implementing consents]."  To the dissenting chair, "[t]he central problem in the case before us is that the heart-rending, mitigating story line presented in the stipulated facts and Respondent's testimony is, I submit, totally irrelevant to the charged violation of Rule 1.15(c)."

We can no longer link to hearing committee and board reports from D.C. as the Bar has taken steps to prevent such links. I suspect that this new blocking process is a result of the recent Avvo dispute but it does limit the dissemination of information about lawyer misconduct. The case is In re Robert Johnson. It can be accessed through this link.

I actually suspect that the link blocking is directed at me, one of the few who draws attention to D.C. bar discipline cases. I may develop this theory in a future post entitled "Even Paranoids Have Enemies."

This case could be significant in the development of case law for consent dispositions in my jurisdiction. (Mike Frisch)

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