Wednesday, September 26, 2018

Longest Strangest Trip May Be Nearing End

The District of Columbia Court of Appeals will hear arguments this morning in perhaps the most blatant case of systemic failure in bar discipline history.

As I posted in July 2017:

What may be the longest and strangest tale in the long strange trip of the District of Columbia disciplinary system may be nearing an end with the release of the report of a fractured Board on Professional Responsibility in In re Quinne Harris-Lindsey.

Here's where we are in a case that began in 2002 with a complaint from a Superior Court judge concerning payments in a single probate matter

There is no majority position as to sanction. Mr. Carter, in a statement joined by Vice Chair Ms. Butler and Mr. Bundy, recommends an informal admonition for Respondent’s recordkeeping violation. Mr. Peirce, in a statement joined by Mr. Bernstein, finds that Respondent also violated Rule 8.4(d), and recommends a public censure. Chair Mr. Bernius, in a statement joined by Ms. Smith, agrees with the Hearing Committee that Respondent engaged in reckless misappropriation, and recommends disbarment.

While a majority of Board members has determined that Respondent did not violate Rule 1.15(a) (misappropriation) and a different majority has found no Rule 8.4(d) violation, we have no majority sanction recommendation despite the unanimous finding of a recordkeeping violation. The recommended sanctions in this case run the gamut. Mr. Bernius and Ms. Smith recommend disbarment, as they must because they find reckless misappropriation without any extraordinary mitigating factors. Mr. Peirce and Mr. Bernstein recommend public censure, as they find two rule violations with the additional Rule 8.4(d) charge. Vice Chair Ms. Butler, Mr. Bundy, and Mr. Carter recommend that Respondent be sanctioned with an informal admonition for the recordkeeping charge, which they believe is the only violation for which Disciplinary Counsel has met its burden of proof.

If you count only seven board members, it is because two board members are recused. One chaired the hearing committee; the other reviewed the proposed consent discipline.

The case was docketed for investigation in 2002 with charges filed some seven years later.

So far, nothing to see here.

The story from there

This case has proceeded since 2009 on the basis that Respondent allegedly misappropriated funds entrusted to her. Disciplinary Counsel charged the case as misappropriation. The parties attempted to resolve it through negotiated discipline as a negligent misappropriation case. The Court and the Board considered the circumstances in which misappropriation charges can properly be resolved through negotiated discipline, and the Court ordered this case to be referred to a Hearing Committee for a full evidentiary hearing. Disciplinary Counsel presented a revised Specification of Charges principally alleging misappropriation. After a full evidentiary hearing, both parties agreed that Respondent had committed negligent misappropriation and violated her recordkeeping obligations, and the Hearing Committee made recommended findings of fact and conclusions of law. Based on the parties’ agreement that some kind of misappropriation had occurred, the Hearing Committee assumed misappropriation and stated that the primary question to be decided was whether the misappropriation was negligent or reckless. The Hearing Committee’s principal conclusion was that Respondent committed reckless misappropriation on at least one occasion and therefore should be disbarred. 

Chair Robert Bernius agreed with the Hearing Committee on misconduct and sanction

I agree with the Hearing Committee’s conclusion that Respondent committed reckless misappropriation and failed to keep adequate records of entrusted funds, and that she must consequently be disbarred.

I disagree, however, with the majority’s detection, analysis, and resolution of issues that the parties intentionally did not raise or brief to the Board. The Board should not decide questions that the parties, for their own unexpressed and presumably sound reasons, have chosen to ignore.

A very interesting concurrence (joined by members Bundy and Butler) from Jason Carter

We recommend that that the Court impose a sanction of an informal admonition for the proven recordkeeping violation. We conclude that the Hearing Committee’s finding of reckless misappropriation is incorrect as a matter of law. In the alternative, if the Court declines to adopt the majority Board’s position, we believe Disciplinary Counsel has proven, at most, a negligent misappropriation so that Respondent should be sanctioned with a six-month suspension, but we recommend that the entire six months be stayed with the conditions that Respondent (1) attend a general continuing legal education class and provide proof of attendance to Disciplinary Counsel; and (2) consult with the D.C. Bar’s Practice Management Advisory Service in the event that she decides to enter private practice. See R Br. at 10. Even if the Court were to find a reckless misappropriation, we believe that the fact that the alleged misconduct occurred in 1999 and Respondent’s exemplary practice of law over the past more than fifteen years warrants due consideration in mitigation of sanction. See Schneider, 553 A.2d at 212; Miller, 553 A.2d at 206. Moreover, extenuating circumstances, as described supra, exist that warrant a lesser sanction than disbarment. See Addams, 579 A.2d at 193; see also Hewett, 11 A.3d at 290 (extraordinary mitigating circumstances). 

The Hewitt case is the only extraordinary circumstance found to avoid the Addams result. I call the case The Altruistic Theft. 

My commentary concerning the Harris-Lindsey Hearing Committee report is linked here.  

The hearing committee report reflects the undeniable fact that the case came to the Office of Disciplinary Counsel fourteen years and one name change ago. I do know that some of the delay is attributable to efforts (which I supported) in 2011 to resolve the case with a negligent misappropriation conclusion and a consent suspension.  When the court rejected a consent sanction in 2011,  I predicted the case would not get finally resolved until 2016. 

How naively optimistic was I. Look for final action in maybe 2018-19. 

Once again the D.C. system shows its system-wide dysfunction - a first-level report (subject to board review and Court final action) of an attorney fourteen years after the investigation  commenced.

Cases regularly take ten years to move from soup to nuts. This one has a shot at twenty.

A rather straightforward case involving a single probate matter where the facts were not in dispute - only the attorney's intent.

My prediction: This case may well lead to the overturning of the en banc holding of In re Addams that disbarment is required in virtually all cases of intentional or reckless misappropriation.  Disciplinary Counsel's delay may well play a role in the demise of that doctrine.

Given this disposition, count that prediction as dead wrong!

My comments on the consent discipline attempt may be found here.

I understand that implementation of the consent rule has been a bumpy ride to date. Perhaps all concerned (Board, Court and Bar Counsel) share some responsibility for the current mess. Perhaps part of it is a good faith disagreement about the best way to use the process. But, in the end, a rule that gives Bar Counsel no meaningful discretion to evaluate credibility is useless.

Given the glacial pace of D.C. bar discipline, consent dispositions are a necessary tool. I can only hope that the Court sees the light here and decides the case in a manner that will promote, not impair, fairness and efficiency. The Board's approach will gut the one tool given Bar Counsel to resolve cases by agreement and save limited resources for the cases that require a plenary hearing.

Now, after 15 years of back and forth, the board's wisdom

Now the Board is considering this case for the first time on a factual record developed in a contested hearing. After carefully considering and adopting the Hearing Committee’s proposed findings of fact, nearly all of which are supported by substantial evidence, and conducting the required de novo review of the proposed conclusions of law and recommended sanction, five members of the Board conclude that Disciplinary Counsel failed to meet its burden of proving, by clear and convincing evidence, that either the client or the Superior Court’s Probate Division (“Probate Court”) entrusted any funds to Respondent. The evidence shows that no estate funds could be spent or were paid to Respondent without the client’s signature and approval, and the Probate Court never appointed Respondent to any fiduciary role. Since neither the client nor the Probate Court entrusted any funds to Respondent, the charges of misappropriation must fail as a matter of law. Two Board members dissent from that conclusion and would affirm the Hearing Committee’s finding of reckless misappropriation. A different five-member majority affirms the Hearing Committee’s conclusion that Disciplinary Counsel (who conceded the issue in post-hearing briefing) failed to prove the charged violation of Rule 8.4(d) by clear and convincing evidence. Two Board members dissent from that determination and would conclude that Respondent’s conduct seriously interfered with the administration of justice in violation of Rule 8.4(d).

That clears things up.

 As to sanction

a plurality of Board members recommend an informal admonition, but there is no majority position with respect to the appropriate sanction.

The board was unanimous in finding a recordkeeping violation. 

The conduct at issue took place in the prior century. 

From negotiated disposition of a six-month suspension to disbarment and back now to the most lenient possible public sanction. 

I guess this ends in an informal admonition, the lowest sanction that commands a plurality.

The last time something like this happened was the en banc sanction in In re Abrams, a case (of mine) that is best remembered for its holding that a pardon did not preclude bar discipline.

As reflected in the concurring and dissenting opinions that follow, Judges Ferren, Schwelb, and Farrell are of the opinion that Abrams should be suspended from practice for six months.   Judge Ruiz would adopt the Board's recommendation that Abrams be suspended from practice for one year.   Judge King is of the opinion that Abrams should receive a public censure.   Chief Judge Wagner and Judges Terry, Steadman, and Reid believe that the presidential pardon precludes this court from imposing any sanction at all.

There is thus no specific sanction which commands the support of a majority of the court.   Public censure, however, is a less severe disposition than suspension from practice.   Under the unusual circumstances here presented, and solely in order to enable the court to dispose of the case, the four judges who believe that Abrams should be suspended from practice have agreed that the sanction proposed by Judge King should be imposed.   Accordingly, in conformity with D.C.Code § 11-2502 (1995), Elliott Abrams, Esq. is hereby publicly censured for professional misconduct.

If Disciplinary Counsel fights this, there is no board sanction recommendation for the court to grant deference (cognoscenti will recall that Addams itself was a 4-4 board report without a sanction majority); nor will the court be obligated to defer to the board's ultimate finding on intent, which is a question of law that the court would consider de novo. 

Final thought: If you are seeking clarity and guidance on an important real world issue that affects how law is ethically practiced, look elsewhere.

 Mr. Toad's got nothing on this.

Editor's note: When I opined that the case was almost over in July of last year, I was wrong as usual.  I do not envy the court's panel (Associate Judges Glickman, Thompson, and Beckwith) in sorting this mess out. 

(Mike Frisch)

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