Tuesday, January 5, 2010
The District of Columbia Board on Professional Responsibility has agreed with a hearing committee that an attorney engaged in serious misconduct both in his practice and in the disciplinary process but rejected Bar Counsel and the committee's proposed disbarment in favor of a three-year suspension with fitness. My question about the case is posed in the title to this post.
The attorney had joined a prominent law firm in 1994 and was made partner in 1995. His practice involved real estate. A firm client retained him to negotiate and prepare an easement relocation agreement between the client and adjacent land owners and others. The attorney started but never completed the work. Rather, he gave the client a forged and falsely notarized document and assured the client (also falsely) that it had been recorded. As a result, the client proceeded to a closing and entered into a construction contract. The attorney falsely advised that he had provided notice to interested parties.
The attorney for an adjacent landowner learned of the construction project and complained to the client. The client could not reach the attorney but contacted another firm partner, who confronted him. The attorney "admitted his actions and attributed them to stress, his use of cocaine and drinking." The problem was cured "at a substantial cost to the law firm." The client did not suffer material injury.
The firm immediately suspended the attorney and later terminated him. The attorney was advised that the firm would report him to Bar Counsel if he did not self-report. When he did not do so, the firm reported him. He responded to the bar complaint and "[m]ost of what he told Bar Counsel was false." He lied about his ongoing cocaine abuse and treatment. He had dropped out of a treatment program by falsely claiming that his father had died. He postponed a meeting with Bar Counsel by falsely claiming that his fictitious nephew had been killed in a traffic acccident.
Does anyone see a pattern here?
The board did, as the attorney had acknowledged "that he had trouble telling the truth." The board also agreed that the attorney had failed to establish any significant mitigation other than a lack of prior discipline. It rejected claims based on ADD, depression and alcohol addiction.
While the attorney admitted cocaine use since college and daily use while at the firm, his work was otherwise excellent. The District of Columbia does not mitigate sanctions based on cocaine addiction and, in any event, the hearing committee had found that substance abuse did not cause the misconduct. The board nonetheless (and wrongly, in my view) concludes that the precedents in the District of Columbia do not require disbarment.
The board cites cases where the Court of Appeals (usually at its urging) declined to impose a full measure of reciprocal discipline on lawyers disbarred in Maryland for serious dishonesty. It finds distinguishable at least two original cases where disbarment was imposed for serious dishonesty absent prior discipline.
If the board is correct, it's a sad commentary of the state of legal ethics in the District. False document, false notarizations, multiple lies to client, severe harm to firm, lies to the disciplinary system, lies to treatment facility. Lies, lies, lies.
I understand that the proposed sanction is not all that different from a disbarment. However, disbarment is a meaningful sanction that identifies the type of behavior that a self-regulating profession must condemn. If an informed public infers that a big-firm lawyer got special treatment, so much the worse. This is a disbarment case.
The case is In re Silva, decided December 31, 2009 and can be found by following this link. Go to search by date range, click on "submit" and locate by the name. (Mike Frisch)