Friday, August 5, 2016

Discipline Case Neglected For Nine Years In D.C. Draws Reciprocal Censure in New York

A stayed suspension and probation imposed by the District of Columbia Court of Appeals translated into a reciprocal public censure from the New York Appellate Division for the First Judicial Department.

The D.C. court found neglect of six matters from the period 2002-2006.

The parties stipulated that there was significant mitigation, namely: nine years had elapsed without further disciplinary complaints being made against respondent; he had no disciplinary record; he fully cooperated with the disciplinary investigation; there was no venality on respondent's part; he took responsibility and expressed remorse for his misconduct; during the period of misconduct he was suffering from Alcohol Dependence and Bipolar Disorder for which he later sought residential and outpatient treatment and, according to the medical evidence submitted, he is now in remission; the medical evidence supports a conclusion that alcohol dependence "substantially affected his misconduct"; he voluntarily ceased the practice of law in 2006 and became vice president of a real estate venture; upon resuming the practice of law in 2008, he joined a law firm in Charleston, West Virginia with a more supportive infrastructure where he was made a partner in 2010; although he had a two-day "slip" in September 2013, in which he abused alcohol, it did not affect his work, he has remained alcohol free ever since and, therefore, an independent medical examiner believes he should continue to function effectively as a lawyer; and that respondent poses no current risk to his clients and is not a recidivist risk while he continues with his treatment plan and with his work environment. No aggravating factors were recited.

The New York court

In matters involving the neglect of client matters, this Court has generally imposed the sanction of public censure where significant mitigation was presented and, in some cases, even where coupled with misrepresentations, which is not the case here...

Note that the D. C. Disciplinary Counsel had these matters under "investigation" for nine years before reaching a stipulated disposition. It only got done because Phil Fox took the case over after his 2011 hire at ODC.

Phil's triage of numerous such grossly neglected cases is the only reason many of the cases ever got done.

Does anyone question the quality of ODC leadership when case after decade-old case comes to light largely because of Phil's efforts?

For instance, it took these people seven years of investigation to figure out what to do with Judge Roy Pearson's pants litigation. If D.C. bar matters were subject to a statute of limitations, it would have long since run. 

There is no "speedy trial" right in D.C. disciplinary matters as a result of the case (argued by me) linked here. 

Any betrayal of the trust which the attorney is sworn to keep demands appropriate discipline; a delay in prosecution, without more, cannot override this necessity. The contrary conclusion would mean that, when licensing applicants, we would engage in a form of deceit: our endorsement of an unqualified attorney would belie our simultaneous assertion that attorneys possess the integrity and competence which they must constantly demonstrate in order to earn the privilege of practicing law in the District of Columbia. Speedy trial principles, which in criminal cases are a constitutionally required curb on the abuse of government power, in the disciplinary system take second place to other societal interests. We conclude, for these reasons, that an undue delay in prosecution is not in itself a proper ground for dismissal of charges of attorney misconduct.

I fear that one consequence of this result - which I continue to believe is absolutely correct - was to empower incompetence and neglect by the Office of Disciplinary Counsel. This "betrayal of trust" would never had occured in my 17 1/2 years there because there was always responsible leadership that would not permit it to happen.

That changed after I left.

D.C. Bar members: If you want to complain to the leadership of the Office of Disciplinary Counsel about their gross neglect of matters involving neglect, don't bother. They are all off partying on your mandatory dues in San Francisco with their fellow wizards . (Mike Frisch)

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