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07/27/90 MATTER S. * RESPONDENT

July 27, 1990

IN THE MATTER OF S.,* RESPONDENT


On Review of Reports and Recommendations of the Board on Professional Responsibility

Rogers, Chief Judge, Steadman, Associate Judge, and Mack, Senior Judge.**

The opinion of the court was delivered by: Per Curiam

This attorney discipline case calls on us again *fn1 to address the problems associated with alcohol abuse by members of the bar of the District of Columbia. Before us are three matters involving respondent, two alleging violations of disciplinary rules (S. I and S. II) and the third recommending that respondent be suspended as incapacitated to practice law (S. III).

A

S. I, a de novo disciplinary proceeding initiated after another jurisdiction suspended respondent from the practice of law for three years, involved respondent's refusal to return a fee collected as an advance to pay for certain costs and his failure to maintain complete records of client accounts. The Hearing Committee to which the matter was referred found that respondent violated Disciplinary Rule 9-103 (B)(4) (failure to "romptly pay . . . to the client . . . funds . . . which the client is entitled to receive") and Disciplinary Rule 9-103 (B)(3) (failure to "aintain complete records of all funds . . . coming into the possession of the lawyer"), and proposed a sanction of public censure. The Board on Professional Responsibility ("the Board") adopted those findings and recommended that this court enter an order publicly censuring the respondent.

S. II involved respondent's refusal to return a case file to a client after a fee dispute arose. Bar Counsel also alleged that respondent had practiced law while on suspension from the practice of law for non-payment of District of Columbia bar dues. The Hearing Committee concluded that respondent had violated Disciplinary Rule 9-103 (B)(4) (failure to "romptly . . . deliver to the client as requested by client the . . . properties in the possession of the lawyer which the client is entitled to receive") and Disciplinary Rule 3-101 (B) (practicing law under suspension "in violation of regulations of the profession" in the District of Columbia), and proposed a sanction of public censure. The Board affirmed the Hearing Committee's findings that respondent had violated the Disciplinary Rules. It determined, however, that because of respondent's previous violation in S. I, a more serious sanction was warranted. The Board recommended that this court suspend respondent from the practice of law for thirty days.

B

The issue of respondent's alcoholism arose in both S. I and S. II. In both cases, Bar Counsel was unsuccessful in his efforts to make information about respondent's alcohol abuse part of the overall picture the Board considered in recommending sanctions to this court.

In S. I, the order of the state disciplinary board which triggered disciplinary action in the District stated that " review of the records and evidence before the [state board] indicates clearly that [S.] was suffering from alcoholism during the period of the acts of misconduct." *fn2 Moreover, shortly after learning that the Board intended to bring a disciplinary action in the District for respondent's conduct in S. I, respondent, through counsel, wrote to the Office of Bar Counsel. The letter indicated that "[S.] is a recovering alcoholic" and requested that proceedings be suspended "until his disability is removed." Additionally, in his answer to the charges in S. I, respondent stated that he intended to "offer evidence of his disease [addiction to alcohol], how it affected his life, personally as well as professionally, its causative relationship to his problems, and the sustained efforts he has made and continues to make toward recovery . . . ."

Respondent ultimately did not seek to introduce evidence of his alcoholism as a mitigating circumstance before the Hiring Committee in S. I, however. As a result, the Hearing Committee concluded that:

lcoholism is not relevant to the case before us, which concerns violations to Canon 9. Alcoholism plainly is not relevant on the merits. Neither is it relevant to the sanction: Respondent does not rely on alcoholism in mitigation and, as far as Bar Counsel is concerned, we do not see how it could be used in aggravation. It seems to us that [S.'s] conduct is worthy of censure (or, possibly, a brief suspension) whether or not it was caused by alcoholism.

The Hearing Committee therefore did not permit any examination by Bar Counsel about respondent's alcoholism, and it also rejected Bar Counsel's request for a full inquiry about "respondent's alcoholism and present physical condition" as a prerequisite to any recommendation on discipline.

The Board, in reviewing the Committee's findings, expressed its belief that the Hearing Committee had "properly resolved the issue of alcoholism raised by Bar Counsel." As a matter of policy, the Board indicated, questions about alcoholism should not be introduced in a disciplinary matter unless the respondent first raises the issue in mitigation. Otherwise, the Board indicated, the proper manner for Bar Counsel to deal with cases involving lawyers impaired by alcoholism is to bring a separate incapacity action under D.C. Bar Rule XI, § 16(3) (current provision codified at D.C. Bar R. XI, § 13(c) (1989)) [hereinafter "section 16(3)"].

Bar Counsel met with similar results in its efforts to convince the Hearing Committee and the Board to consider respondent's alcoholism in S. II. The Board reiterated that a separate section 16(3) petition is the appropriate vehicle where Bar Counsel questions a respondent's present fitness to practice law because ...


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