Wednesday, December 6, 2017

Disregard Of Bar Duties No Reason To Impose Fitness Requirement

An attorney's near total disregard for the disciplinary process - after he was on clear notice of the bar complaint - was insufficient to warrant a fitness requirement, according to a District of Columbia Hearing Committee's recommendation of a 30 day suspension.

After a raft of efforts by Disciplinary Counsel to secure a response to the client's complaint

On March 4, 2016, Respondent sent an e-mail to Disciplinary Counsel attaching a letter of the same date. Mayfield Aff. ¶¶ 19-20; DX 11; DX 12. In the letter, Respondent admitted receiving $2,850 from his client—$2,400 for his legal services and $450 to cover the filing fee. DX 12 at 4. Respondent stated that he had sent the client a certified check for $3,091.78, which he described as “$2,850 + interest.” DX 12 at 5. Although Respondent stated he was attaching a copy of the check to his letter, he failed to do so. Mayfield Aff. ¶ 20-21; DX 12. Respondent did not provide his client file, his financial records, or any other documents responsive to the subpoena duces tecum...

On approximately March 30, 2016, Disciplinary Counsel called and spoke with Respondent by telephone. See DX 15. Respondent stated he would respond to the subpoena. Id. He did not do so, even after receiving a follow-up email from Disciplinary Counsel on April 6, 2016.

Thereafter, nothing.

He defaulted on the allegations and failed to participate at all.

As to fitness

Here, Respondent’s failure of cooperation has been limited to a single matter, namely Disciplinary Counsel’s investigation into the Robertson matter. Respondent’s failure to properly respond to that investigation causes the Committee concern. But the Committee cannot say that it has a serious doubt concerning Respondent’s fitness to practice law based on his failure to properly respond in this one matter. The Committee may well have had a different recommendation if Respondent had failed to properly respond in more than one matter or if there was otherwise evidence of a broader pattern of misconduct...

We see no evidence of deception by Respondent in this case. At most, there is evidence that he promised Disciplinary Counsel that he would provide additional responses that he did not actually fulfill. He offered excuses for his failure to answer the letters and subpoena. Whatever the merit of those excuses or lack thereof, we read them as efforts to explain why he had not complied. We do not read them as evidence of any belief that he was not required to respond or as evidence of an intent to deceive Disciplinary Counsel going forward.

We find that his failure to respond to Disciplinary Counsel’s investigation has not been sufficiently repetitive as to raise a serious doubt about his fitness to practice law.

The Committee believes that the underlying misconduct is serious. But rather than imposing a fitness requirement, the Committee recommends that Respondent be directed to complete CLE courses on law-practice management (three hours) and on professional responsibility/ethics (three hours) before he can be reinstated following his suspension.

This public protection-unfriendly result is the product of an unfortunate aspect of the decision of the Court of Appeals in In re Cater.

Many jurisdictions (New York, for instance) actually treat the flagrant disregard for the obligation to cooperate in a bar investigation as a disbarrable offense. 

In D.C. , it's a legitimate hearing strategy.

The case is In re Leslie Thompson. (Mike Frisch)

Bar Discipline & Process | Permalink


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