A Defeat For Consent Dispositions In D.C.

On review of a question posed by the District of Columbia Court of Appeals, the Board on Professional Responsibility recommends that the court reject a negotiated discipline

Hearing Committee Number Ten recommended that the Court of Appeals approve the parties’ agreed-upon resolution of this matter: that Respondent failed to maintain complete records of his handling of entrusted funds in violation of Rule 1.15(a), and should be suspended for thirty days with proof of fitness prior to reinstatement, all stayed in favor of probation. On January 3, 2023, the Court requested “the Board’s views . . . on the appropriateness of the proposed sanction in light of this [C]ourt’s precedents.” The Court explained that “the Hearing Committee expressed reservations as to whether the proposed sanction was justified because respondent’s misconduct may have constituted misappropriation (deeming it a ‘close question’)."

We have reviewed the stipulated facts set forth in the Hearing Committee Report and we conclude that the Hearing Committee’s reservations were well founded. The Board recommends that the Court reject the parties’ negotiated disposition because the stipulated facts support the conclusion that Respondent engaged in misappropriation in addition to the stipulated record-keeping charge. Because the parties believed that Respondent’s conduct did not involve misappropriation, consideration of the sanction requires further factual development, including facts regarding Respondent’s state of mind or intent. See Hearing Committee’s Report and Recommendation at 4 n.2 (“[O]ur consideration of this Petition would be different if Respondent engaged in misappropriation.”).

The facts involve a $256.81 overdraft of an estate account

The account was overdrawn, in part, because Respondent did not factor in the withdrawn bank fees when calculating the distribution of the Estate funds to the legatees. But the bank fees do not explain the total shortfall. Despite the overdraft, the bank paid the check, and then closed the account. Thus, all of the legatees received the amounts due to them.

The parties agreed that Respondent had violated Rule 1.15(a) by failing to maintain sufficient records of his handling of entrusted funds. Disciplinary Counsel represented that its investigation did not reveal evidence that the overdraft involved misappropriation.

The BPR

because the current record has not been fully developed on the misappropriation issue, we cannot be sure that Disciplinary Counsel has not offered an unduly lenient sanction.

As a result of this ill-founded decision, the parties are consigned (in all likelihood) to a multi-year process that will usurp limited resources and more than likely yield the same result. 

See here.

I hope the Court nonetheless accepts the consent.

If your Disciplinary Counsel says that their investigation does not find misappropriation, trust him. If your Hearing Committee agrees after its independent review, trust them. (Mike Frisch)