Friday, May 11, 2012
An attorney who was disbarred in Maryland in 2010 also is admitted to practice in the District of Columbia.
In the reciprocal disclinary proceeding, the D.C. Board on Professional Responsibility ("BPR") has recently recommended a sanction that will automatically reinstate him on probation after a one-year suspension.
The Maryland Court of Appeals found that the attorney had abandoned two clients, misrepresented (that is to say lied about) the status of the matter to one of the clients and failed to cooperate with Bar Counsel. He also showed no remorse for the misconduct.
In D.C., he had previously been informally admonished and, just recently, suspended for 45 days for misconduct in unrelated matters.
Why did the BPR conclude not only that disbarment was inappropriate but that the attorney was presently fit to represent District of Columbia clients?
...a fitness requirement is frequently part of the discipline imposed in multiple cases of neglect coupled with other violations, and this case is close, given that Respondent lost track of [one] case entirely and cannot explain what happened to some 50 checks that were sent to his offices by GEICO...we do not think the misconduct raises a question of basic character that would require a fitness showing...Rather, his misconduct relates principally to his organizational skills and ability to keep track of the various cases in his office. The record demonstrates sloppy recordkeeping and a failure to communicate that resulted in his abandonment of client matters.
Does this analysis explain the misrepresentation to the client and failure to cooperate?
If the question of fitness is a "close" one (a dubious proposition in my mind), why not err on the side of protecting the public?
When the D.C. Court of Appeals imposed an interim suspension based on the Maryland disbarment in January 2011, the attorney was ordered to file an affidavit certifying that he had ceased to practice in the jurisdiction. He never did so. The BPR does not consider (or even mention) his defiance of the court's order.
This recommendation reflects an error of law as well as of judgment. The board invokes the Cater precedent, which places the burden on Bar Counsel to establish unfitness to practice in an original matter. In reciprocal matters, the burden is reversed and the attorney must establish that the Maryland Court's unfitness conclusion is outside the range of possible sanctions.
The case is In re David Fox and can be found at this link by inserting his name. (Mike Frisch)