Friday, June 16, 2017

Default Is In Our Stars

The District of Columbia Board on Professional Responsibility adopted a hearing committee's findings and disbarment recommendation in a matter involving misappropriation of client funds.

The board noted the respondent attorney's failure to participate and post-charge delaying tactics.

Disciplinary (then Bar) Counsel received the complaints in 2007 and 2009. In 2013, charges were filed in those two matters. 

When the initial charges were filed

Disciplinary Counsel first charged Respondent with violations arising out of the Fortune and Silver matters. The Hearing Committee started a hearing in April 2014, but, due to an unfortunate accident suffered by Respondent's counsel, the hearing had to be continued. In July 2014, Respondent terminated her counsel and simply stopped meaningfully participating in the hearing process. Instead, she filed a number of requests to postpone or reschedule hearings. These filings were generally last-minute and untimely. Despite requests for some evidentiary support from the Hearing Committee, Respondent consistently chose not to substantiate her statements that she repeatedly needed to reschedule hearings at the last minute. Nonetheless, the Hearing Committee granted the extensions.

Her strategy of avoidance was effective if unorthodox, dragging out an open-and-shut disbarment for over three years.

This case has languished in the disciplinary system far longer than is ideal, particularly where the misconduct that warrants disbarment-misappropriation-was largely a matter of straightforward math under Edwards.

The Hearing Committee granted continuances as Respondent requested them. If a Respondent requests more than one continuance based on a factual representation about a conflicting obligation, a medical necessity, or something similar, it would be appropriate for the Hearing Committee to condition further extensions on an evidentiary showing.- Without such a practice, a lawyer could delay the imposition of discipline far longer than would be necessary to comport with due process. This is particularly true when a respondent has a pattern of using such delay tactics. There is a line between appropriately accommodating a respondent's schedule and allowing abuse. Where that line lies turns on questions of fact, hearing committees should not be shy about demanding evidence when they are asked to repeatedly reschedule hearings or other dates.

Disciplinary Counsel argues that one remedy for the delay in this case, at least at the Board level, is for this Board to find that a respondent waives any argument not made to a hearing committee. ODC Br. at 13-16. There is no clear authority that supports the proposition that a failure to raise an issue before a hearing committee waives a respondent's right to raise that issue before this Board. 

The point is well-taken.

In D.C., the concept of default in bar discipline is anathema. Most places have a policy that if the lawyer bolts, the consequences are swift, predictable and harsh. 

As it should be.

Because the point of the exercise is public protection, right?

The case is In re Cynthia Malyszek and can be found at this link.  (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/06/the-district-of-columbia-board-on-professional-responsibility-adopted-a-hearing-committees-findings-and-disbarment-recommenda.html

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