On Report and Recommendation of the Board on Professional Responsibility
Before Schwelb and Farrell, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: In this disciplinary proceeding, the Board on Professional Responsibility found that respondent had engaged in misrepresentation in violation of DR 1-102(A) (4) when, in response to a show cause order issued by the Superior Court, he falsely -- and with intent to deceive -- told the court that he had previously lied to a court-appointed mediator about his representation of a third-party (a surgeon) and about his reason for that lie. We adopt the Findings of Fact, Conclusions, and Proposed Discipline of the Board on Professional Responsibility. Its well-reasoned report is reproduced herewith.
Accordingly, it is hereby ordered that respondent, John A. Waller, be suspended from the practice of law in the District of Columbia for a period of sixty days, effective thirty days from the date of this order.
BOARD ON PROFESSIONAL RESPONSIBILITY
DISTRICT OF COLUMBIA COURT OF APPEALS
IN THE MATTER OF JOHN A. WALLER, ESQUIRE
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
After a hearing, two members *fn1 of Hearing Committee No. 10 found that Respondent, John A. Waller, Esq., had engaged in misrepresentation in violation of DR 1-102(A) (4). *fn2 One of these members recommended public censure as the appropriate sanction; the other recommended that Respondent be suspended for thirty days and be required to prove fitness before readmission.
Neither Bar Counsel nor Respondent filed exceptions. Nevertheless, the Board has reviewed this matter and has reached a result different from that recommended by the Hearing Committee. Specifically, although the Board agrees that misrepresentation has been proven on this record, the violation we find is a different one from that found by the Hearing Committee. Based on the violation we find, the Board recommends the sanction of a 60-day suspension.
The pertinent facts in this matter, which are not in dispute, are as follows:
1. Respondent has been registered as an attorney with the District of Columbia Bar since 1971. [B.Ex. "A"]. *fn3
2. Sometime prior to October, 1987 Respondent was hired by Yolanda Thorpe to handle a claim for damages arising from a medical bone implant procedure that failed. On October 16, 1987, Respondent filed a "Complaint for Breach of Warranty and Negligence" on behalf of Ms. Thorpe. [B.Ex. 4].
3. The suit joined the hospital where the implant had been done, as well as the tissue bank that supplied the bone tissue. The surgeon who did the implant was not named a defendant.
4. On March 29, 1988, before discovery began, the Trial Judge, Henry Greene, ordered the parties to attend a mediation session with Joel Finkelstein, a lawyer in private practice who would serve as mediator. [B.Ex. 1(b)].
5. During the mediation session, it occurred to the mediator that "there was a glaring vacuum in the pleading [ i.e., complaint] in that the surgeon was not named as a defendant." [Tr. 26]. At that time, Respondent told the mediator that he "was the surgeon's attorney." [Tr. 26, 28]. The mediator then told Respondent that, in the mediator's opinion, Respondent "had a conflict of interest in this case in that he represented the surgeon who could and probably should have been a named defendant because it was a meritorious malpractice claim." [Tr. 27]. When Respondent disagreed with the mediator's assessment, the mediator told Respondent to bring the matter to Judge Greene's attention. [Tr. 27-28].
6. Thereafter, the mediator tried several times to reach Respondent by telephone to find out whether he had, in fact, alerted the Court to the possible conflict situation. The mediator never got through to Respondent. [Tr. 30].
7. Receiving no response from Mr. Waller, the mediator then contacted Judge Greene on his own. [Tr. 30]. Judge Greene suggested that the mediator again attempt to reach Respondent in order to have Respondent himself contact the Court. This was attempted, again without success. [Tr. 30-31].
8. Still concerned, the mediator contacted Judge Greene once more and, for the first time, told him about the possible conflict of interest. The mediator felt he could do so despite the non-disclosure provision of the mediation order *fn4 because "it was a matter that had nothing to do with the negotiations between the parties but might affect the administration of Justice in the Superior Court . . ." [Tr. 31-32]. Judge Greene agreed and, on April 1, 1988, he issued an order requiring Respondent to show cause why his ...