Thursday, June 10, 2021

Nine Years Not In Tibet

An attorney's representation of a creditor and the beneficiaries of a trust created a conflict of interest that blossomed from potential to actual, according to an opinion of the District of Columbia Court of Appeals

Respondent clearly violated Rule 1.7(b)(1) when an actual dispute arose among his clients. Once [creditor] Mr. Ridley demanded that the Fishers return the payment from trust funds, and the Fishers asserted their right to keep it, respondent should have realized that his clients had actually developed adverse positions in the same matter. Even if he obtained informed consent, respondent could not continue representing both Mr. Ridley and the Fishers, as respondent could not “reasonably” believe that he would be able to provide “competent and diligent representation” to each client under the circumstances. See D.C. R. Prof’l Cond. 1.7(c)(2). Yet respondent did not move to withdraw from representing any of the clients. Instead, he moved the court to adopt the outcome preferred by Mr. Ridley, advancing a position “adverse” to the one “taken by” the Fishers “in the same matter” and thereby violating Rule 1.7(b)(1).

And

We also agree with the Board that respondent violated Rule 1.3(b)(2) by filing the praecipe. That provision bars lawyers from “intentionally . . . [p]rejudic[ing] or damag[ing] a client during the course of the professional relationship.” Respondent was “demonstrably aware” that his praecipe not only asked the court to compel Mr. Fisher to repay the funds Mr. Hopson distributed to him, but also accused the Fishers of making misrepresentations. 

But the court rejected the presumptively correct sanction recommendation

we agree with respondent that the sanction proposed by the Board is too harsh. Respondent has no prior disciplinary history. His work in this case benefitted his clients on the whole by allowing them to replace an allegedly negligent trustee; he also reduced that trustee’s recovery from the trust by tens of thousands of dollars compared to the amount she initially sought in her counterclaim. Respondent’s violations marred these efforts but only caused his clients minimal prejudice and did not result in them suffering a financial loss. Nor did his conduct reflect bad faith. As the Committee found, respondent did not act based on self-interested motives, but rather misunderstood how the rules applied to a complex situation.

Resisting this conclusion, Disciplinary Counsel argues that respondent filed the praecipe to ensure he received his fees, an interpretation the Committee did not expressly endorse but one it opined the record “might” support. We deem this view implausible.

Thus

Rather than suspend respondent for three months, as the Board recommended, we suspend him for thirty days and stay the suspension in favor of one year of probation. As conditions of probation, respondent must complete six hours of continuing legal education on professional responsibility that Disciplinary Counsel approves and that includes a course on representing multiple clients in civil cases. Additionally, respondent must not during probation be the subject of a disciplinary complaint that results in a finding of misconduct in this or any other jurisdiction.

A rather distressing note on the timeline of the process.

This case was argued in May 2018. Indeed, two of the listed disciplinary counsel have long since departed.

The disciplinary complaint was filed in mid-2012 and charges were brought in July 2014. 

Nine years is far too long to resolve a bar complaint involving a single discrete set of circumstances.  (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/06/an-attorneys-representation-of-a-creditor-and-the-beneficiaries-of-a-trust-engaged-in-a-conflict-of-interest-that-blossomed-f.html

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