Monday, July 15, 2019

A Second Bite Reduces Three-Year Suspension To Reprimand

Reciprocal discipline - a sanction ordered in response to the discipline imposed by another tribunal - is grounded in principles of collateral estoppel.

An attorney is entitled to one fair bite at the apple and - as a general proposition - is not permitted to relitigate the original case or go beyond the record created in the disciplining jurisdiction. 

As the District of Columbia Court of Appeals noted

The rationale behind the use of a more rigid standard in reciprocal discipline cases is plain. First, another jurisdiction has already afforded the attorney a disciplinary procedure that includes notice, an opportunity to be heard, sufficient proof of misconduct, and a determined sanction. There is no need for a de novo repetition of the entire process, and the burden of persuasion is reversed. Second, there is merit in the idea of granting due deference for its sake alone to the opinions and actions of a sister jurisdiction with respect to attorneys over whom we share supervisory authority.

Put another way, in dealing with proceedings involving our jurisdiction alone, we concern ourselves with inconsistent dispositions of cases involving comparable conduct by different attorneys. In a reciprocal discipline proceeding, we also must factor in the effect of an inconsistent disposition involving identical conduct by the same attorney.

As usual, New Jersey is unusual. 

A Disciplinary Review Board report tells the tale of the process that unfolded

following the Supreme Court of Florida’s March 9, 2017 imposition of a three-year suspension, retroactive to June 16, 2016, the effective date of respondent’s suspension for contempt of court, by failing to comply with a subpoena issued by The Florida Bar. The three-year suspension was based on respondent’s conditional guilty plea for consent judgment in which she admitted having violated [a number of Florida Rules]...

The New York Appellate Division for the Second Judicial Department imposed the three-year suspension.

The New Jersey Office of Attorney Ethics sought a reciprocal reprimand or censure.

Respondent had been a paralegal for a lawyer who got disbarred. She took over the case of an incarcerated client with a wrongful death claim.

At the time of Carrasquillo’s request, respondent was a member of the New York bar. Although she had taken and passed the Florida bar examination, she had not yet been admitted to practice law in that state.

She was admitted pro hac vice.

The claim settled and disbursement was complicated by the client's incarceration. She kept proceeds in escrow but lost touch with the client, who complained to the Florida Bar.

In late 2015, Carrasquillo again complained that he had lost contact with respondent and that he "had no idea about his money." When The Florida Bar asked respondent to reply to Carrasquillo’s allegations, she first stated that his funds were in her New York trust account, but that she would be transferring the monies to the Florida trust account. She then stated that the funds would remain in the New York trust account.

She defaulted on the Bar complaint but appeared and consented to the sanction

At the hearing, respondent acknowledged that she had failed to provide The Florida Bar with the New York trust account information. According to respondent, she was uncertain whether she could disclose information pertaining to her New York clients.

In New Jersey

In this proceeding, respondent’s affidavit provides additional facts about her background, her conduct vis-i-vis Carrasquillo and The Florida Bar, and in mitigation.

...In short, respondent asserts that her misconduct "was the result of mental health issues" for which she is now seeking treatment. Thus, the communication breakdown, on her part, was due to "worsening depression and anxiety."

The details underlying respondent’s mental health issues are scant, but serious. Specifically, in 2012, she had a falling out with a business partner, who "cut off [her] ability to earn a living." At about the same time, respondent ended her relationship with her fiance. Both events resulted in two protracted lawsuits, one involving the home that she owned and in which she lived According to respondent, "the above-described incidents" caused her depression and anxiety.

The board considered her treatment and general good character.

As to the misconduct

Here, respondent violated RPC 1.8(a) when she accepted Carrasquillo’s offer to permit her to borrow funds that she held in trust for him, but made no effort to ensure that the transaction and terms were "fair and reasonable" to Carrasquillo, by fully disclosing the terms to him, in writing, in a manner that he could understand; and advising him to seek counsel, providing him with a reasonable opportunity to do so, and, ultimately, obtaining his consent to the loan in writing.

Notably, that violation was not one found in Florida.

The board rejected some of the Florida misconduct conclusions

The record, however, does not contain clear and convincing evidence that respondent violated RPC 1.2(a) or RPC 8.4(c). RPC 1.2(a) pertains to a client’s decisions concerning the scope and objectives of the representation...

Although respondent admitted and was found guilty of violating RPC 8.4(c), we cannot ascertain the facts on which the violation was based. In our view, the record does not clearly and convincingly establish that she acted dishonestly, fraudulently, deceptively, or that she made a misrepresentation.

In the Garden State

Although respondent may have suffered from depression and anxiety at the time of her misconduct, no evidence links her mental health issues to her misconduct vis-a-vis her use of Carrasquillo’s funds. Her affidavit is not clear in respect of when she sought treatment from her primary care physician in Florida, although it would appear to have been sometime in 2013. Moreover, Dr. Karpas did not know respondent at the time of her misconduct, and his letter does not link that misconduct to her mental anxiety and depression. Although respondent’s remorse and her efforts to rehabilitate herself are admirable, in our view, the mitigation is insufficient to reduce the reprimand to an admonition.

So it is proposed so shall it be

I handled a reciprocal discipline matter from Florida where the attorney had consented to resignation  at an early stage, failed to notify the District of Columbia and claimed insufficiency of the evidence when the Florida Bar brought the action to our attention eight years later.

She had been practicing in federal matters from a Florida office on the strength of her D.C. license.

I well remember the oral argument before the DC BPR, which allowed her high profile counsel to harangue endlessly and repetitively about the unfairness of it all well past his allotted time. 

The court was not sympathetic to her claims.

Day argues that because the Florida resignation procedure did not result in any adjudication of wrongdoing or findings of fact, and did not require any admission of wrongdoing, there is an infirmity of proof establishing the misconduct for which she would be disciplined on a reciprocal basis.   This is merely another attack on the imposition of reciprocal discipline based on the Florida resignation procedure, which we have rejected.   We further agree with the Board that Day should be estopped from arguing in these proceedings that there was an infirmity of proof that should serve as the basis for avoiding reciprocal discipline here.   It was Day's choice to permanently resign from the Florida bar that effectively ended the Florida investigation.   As a result, the Florida Bar discarded the files, making investigation of the matter difficult.   Furthermore, because Day never reported her resignation in Florida to this jurisdiction as she was required,  Bar Counsel did not have the opportunity to investigate her claims in a timely manner and has been severely prejudiced by the delay.

The United States Supreme Court denied her cert petition. (Mike Frisch)

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