Thursday, September 21, 2017

The Lesser Of Two Sanctions

Reciprocal discipline was imposed by the West Virginia Supreme Court of Appeals where the attorney had been sanctioned in both Virginia and the District of Columbia for the same misconduct.

On June 26, 2013, the Virginia State Bar Disciplinary Board issued a public reprimand with probationary terms to the respondent herein, attorney David A. Downes, for his negligent misappropriation of client funds and his failure to properly maintain a client trust account in violation of Virginia Rule of Professional Conduct 1.15. Furthermore, in connection with a lawyer disciplinary case initiated in the District of Columbia (“D.C.”) based upon the same Virginia disciplinary matter, the respondent consented to the annulment of his D.C. law license effective September 25, 2014.

Notably, Virginia (which handled the original bar complaint) was lenient for a matter involving misappropriation

After considering the stipulations and evidence presented, by order entered June 26, 2013, the Virginia State Bar Disciplinary Board issued a “public reprimand with terms” to the respondent. The specified terms were probationary: he was prohibited from engaging in any further professional misconduct for a period of eighteen months; during the eighteen-month period, he was required to submit to a minimum of four and a maximum of eight periodic, random reviews of his trust account records and reconciliations; and he was required to pay all costs of those reviews. 

The District of Columbia disciplinary system took a dimmer view

Based upon the June 26, 2013, order of the Virginia State Bar Disciplinary Board, the D.C. Office of Bar Counsel opened a lawyer disciplinary complaint in that jurisdiction. On September 11, 2013, Joseph C. Perry, Assistant D.C. Bar Counsel, wrote to the respondent asserting that even in cases of negligent misappropriation of client funds, the District of Columbia Court of Appeals has specified that a period of suspension from the practice of law is the appropriate sanction to be imposed. The respondent answered this letter by arguing that application of the D.C. Bar’s rules should result in the imposition of the same sanction as was imposed in Virginia. Subsequently, however, the respondent consented to be disbarred in D.C. instead of continuing to defend the disciplinary case. In an affidavit signed on August 27, 2014, the respondent acknowledged the truth of the material facts upon which the allegations rested; acknowledged that in accordance with D.C. case law, he had recklessly misappropriated funds entrusted to him in Mr. Brown’s case; and admitted he could not successfully defend the allegations in D.C. Accepting the respondent’s affidavit, by order of September 25, 2014, the D.C. Court of Appeals disbarred the respondent from the practice of law in that jurisdiction. 

Faced with wildly varying sactions between the two jurisdictions, the West Virginia court chose the lesser one

In this case, the respondent received public discipline in Virginia and he voluntarily surrendered his law license in D.C. Pursuant to RLDP 3.20,12 each of those events triggers the initiation of reciprocal disciplinary action in our State. However, in its second report, the HPS determined that under the specific facts and circumstances of this case, the appropriate reciprocal discipline to be imposed by this Court should be based upon the Virginia disposition, not the D.C. outcome. We agree. The respondent’s voluntary disbarment in D.C., although a more severe outcome than in Virginia, was pursuant to a charge based entirely upon the conduct committed and penalized in Virginia. Moreover, there is no indication that D.C. authorities would have disbarred the respondent had the matter been litigated to a conclusion; rather, in his September 11, 2013, letter, the D.C. Bar Counsel advised the respondent he was facing a suspension for negligent misappropriation. The record is clear that the respondent voluntarily surrendered his D.C. law license because he saw no utility in undertaking the expense or effort toward maintaining that license. Accordingly, after considering the respondent’s underlying misconduct and the reasons for the surrender of his D.C. law license, we are convinced the respondent’s actions warrant a substantially different disposition than occurred in D.C. See RLDP 3.20(e)(4).

West Virginia had only learned of the two sanctions when told by the D.C. Disciplinary Counsel.

Thus there were consequences to the attorney's failure to report 

To reinforce the importance of the mandatory reporting obligation, we now hold that pursuant to Rule 3.20(b) of the West Virginia Rules of Lawyer Disciplinary Procedure, a member of The West Virginia State Bar, whether on active or inactive status, shall notify the Office of Disciplinary Counsel of any form of public discipline imposed by the authorities of another jurisdiction, or of the voluntary surrender of his or her license to practice law in connection with disciplinary proceedings in another jurisdiction. A member’s failure to comply with this rule shall constitute an aggravating factor in a reciprocal disciplinary proceeding and may result in an increase in the sanction imposed by this Court. In the case sub judice, the respondent’s failure to timely report the Virginia public discipline and the D.C. voluntary disbarment to the West Virginia ODC constitutes an aggravating factor warranting the increase of his sanction to a thirty-day period of suspension from the practice of law in West Virginia, instead of a public reprimand as was issued in Virginia.

 (Mike Frisch)

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