Thursday, November 8, 2018
The District of Columbia Court of Appeals has in a per curiam decision affirmed the most pro-attorney, anti-public protection recommendation in the history of the D.C. discipline system .
As a consequence, attorneys who clearly engaged in a gross conflict of interest get off scot-free for horrific elder abuse.
A hollow tsk tsk is all the court can muster
In sum, although we fully understand Disciplinary Counsel’s concerns about the Szymkowiczes’ conduct in this case, we accept the Board’s conclusion that the Szymkowiczes were not shown by clear and convincing evidence to have violated Rule 1.7.
The court majority's "full understanding" offers faint if no hope to future victims. And does nothing to instruct the Bar and public on the ethics of elder care abuse.
Rather, the court's discussion of burden shifting has no practical consequence but to tie the hands of Disciplinary Counsel in proving conflicts.
There is no case in the history of the D.C. disciplinary where a hearing committee, the board and the court so studiously ignored the proven facts to achieve the desired result
The lone voice of concern can be found in the dissent of Senior Judge John Steadman
I disagree that the structure of criminal law presents a fair analogy. Bar discipline proceedings are designed to ensure that attorneys abide by the rules of professional conduct that their license demands and to protect the public accordingly.
From my earlier post on this case
The evidence in the case supports a conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. The result was the significant depletion of the woman's financial resources (and she paid for the ensuing litigation brought in her name), the withdrawal of two of the attorneys after a judge had raised the conflict issue and a court determination by one of the most respected jurists in the District of Columbia that the woman had not been competent to sign the documents that the attorneys had drafted for the benefit of the son.
After they withdrew, the two attorneys continued to stage-manage the dual representation by hiring and paying successor counsel (with the woman's money) and drafting legal documents for the woman's signature.
The hearing committee, throughout its report, repeatedly states that there was "no evidence" of any ethical violations. In fact, there was the testimony of twelve witnesses called by Bar Counsel and the orders of Superior Court judges that provided compelling evidence of the charged misconduct. The hearing committee simply chose to ignore it.
The injustice perpetrated in these disgraceful proceedings was a direct result of the court and board's unwarranted deference to the dereliction of duty of the hearing committee as I blogged
When I read the report, I wondered about the background of the committee chair and surprise, surprise: He's an elder care lawyer. He signed (and presumably authored) an opinion that makes it nearly impossible to prosecute lawyer elder abuse. A classic "fox guards henhouse" approach to bar discipline.
And then, this from the committee chair's law partner hits my in box:
My partner, John Quinn, chaired a Board on Professional Responsibility panel which decided the attached case against Bar Counsel and in favor of the lawyers involved.The case spanned several years and the opinion is 219 pages. It is the only case known to the Hearing Committee that squarely deals with the difference between legal compentency and legal capacity. I recommend reading it in that it involved charges of Bar Counsel of conflicts of interest, dishonesty, fraud and other ethical violations against several attorneys alleging that they represented a client who Bar Counsel alleged was "incompetent…suffered from cognitive impairment..and memory problems." The report cites the relevant cases and other authorities that are pertinent and useful to practitioners.
I find this shocking, but at least it makes the agenda of this report crystal clear: protect the profession, trash the victim of misconduct (and discourage other victims from coming forward), make future Bar Counsel prosecutions virtually impossible and use the whole thing as a marketing tool.
It also is noteworthy that it took the hearing committee over 2 1/2 years to produce this whitewash, notwithstanding a rule that requires that the report be filed within 120 days of the close of the hearing.
In its wisdom, the board refused to consider the above email. Ignoring it was more convenient.
During the pendency of these proceedings, I reached out to respected members of the probate bar who uniformly expressed horror at what these lawyers did but were reluctant to speak out in public.
This is - simply put - Exhibit One in anyone's indictment of the "self-regulating" District of Columbia legal profession.
A very disappointing day.
Update: I posted this comment after reading a New Jersey decision
The disposition of [this] case was an unfortunate byproduct of a rogue hearing committee and not reflective of a court that almost invariably strikes an appropriate balance between the competing interests posed in bar discipline matters.
That needed to be said here. (Mike Frisch)