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05/29/92 MATTER WILLIAM L. MUCKELROY RESPONDENT

DISTRICT OF COLUMBIA COURT OF APPEALS


May 29, 1992

IN THE MATTER OF WILLIAM L. MUCKELROY, RESPONDENT

A Member of the Bar of the District of Columbia Court of Appeals. On the Report and Recommendation of the Board on Professional Responsibility.

Before Schwelb, Farrell and King, Associate Judges

The opinion of the court was delivered by: Per Curiam

PER CURIAM: In this reciprocal discipline case, the Board on Professional Responsibility, with one member Dissenting, has proposed that this court publicly reprimand the respondent, William L. Muckelroy, Esq., for attempting to collect legal fees from an indigent client whom he had been assigned to represent. A public reprimand was previously issued by the Supreme Court of New Jersey.

In its Report and Recommendation, *fn1 the Board noted that in the absence of serious infirmities in the New Jersey proceedings, D.C. App. R. XI, § 11 (c) requires us to impose reciprocal discipline unless the respondent shows by clear and convincing evidence either that the misconduct in New Jersey would warrant substantially different discipline in the District of Columbia, or that reciprocal discipline would result in a grave inJustice. See In re Loigman, 582 A.2d 1202 (D.C. 1990). The Board found that respondent has made neither showing. No exceptions were filed in this court, and our scope of review is limited. See D.C. App. R. XI, § 9 (g). Although the Dissenting opinion is not without force, we agree, substantially for the reasons stated in the Board's majority opinion, that reciprocal discipline should be imposed.

In fairness to respondent, we note that on August 7, 1991, an order was erroneously entered by this court suspending him from the practice of law in the District of Columbia pending final Disposition of this proceeding. There was no legal basis for suspending respondent, see D.C. Bar Rule XI § 11 (d), and the suspension was vacated on August 21, 1991, by order of this court. Respondent advised us at argument that the erroneous suspension received substantial publicity. This unfortunate error does not, however, affect our obligation to impose reciprocal discipline in the circumstances of this case. Accordingly, it is hereby

ORDERED that respondent William L. Muckelroy is hereby publicly reprimanded for disciplinary violations committed by him in the State of New Jersey.

Report and Recommendation of the Board on Professional Responsibility

This is a reciprocal discipline case. Respondent is a member of the Bar of the State of New Jersey. On January 16, 1991, the Supreme Court of New Jersey ordered that Respondent be publicly reprimanded based on its determination that he had violated DR 1-102(A)(4), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and DR 1-102(A)(5), engaging in conduct that is prejudicial to the administration of Justice.1a The genesis of these charges was Respondent's attempt to collect legal fees from an indigent whom he was assigned to represent. By order dated August 7, 1991, the District of Columbia Court of Appeals suspended Respondent and ordered him to show cause why reciprocal discipline should not be imposed. In entering this order, the Court of Appeals was apparently under the misapprehension that Respondent had been suspended by the Supreme Court of New Jersey. The Court of Appeals amended its order on August 21, 1991, reinstating Respondent nunc pro tunc to August 7, 1991. The portion of the August 7 order requiring Respondent to show cause remained in effect.

The Decision and Recommendation of the Disciplinary Review Board in New Jersey, which was adopted by the Supreme Court of New Jersey, found that in August 1983, Respondent was assigned by a municipal court to represent Arthur McCloud, an indigent, in a non-indictable, criminal offense. The order appointing Respondent stated "there are no counsel fees UNDER THIS." Respondent sent McCloud a letter with a promissory note for him to sign evidencing his indebtedness to Respondent for legal fees in the amount of $1,500. Although the letter indicated that the purpose of the note was to secure McCloud's obligation to pay legal fees in the event he was no longer indigent in the future, the note itself contained no such condition and was to become due in 31 days. McCloud refused to sign the note.

In October 1983, at a Municipal Court appearance, Respondent, through an associate, again requested that McCloud sign a promissory note. McCloud again refused. Even though McCloud never signed the note, in October 1984, Respondent caused a collection agency to contact McCloud in an effort to collect the $1,500 allegedly owed to Respondent in legal fees. When the collection agency contacted McCloud in order to collect the bill, McCloud sought to have the matter submitted to fee arbitration. Respondent presented a case before the Fee Arbitration Board, but the Board referred the matter to the Ethics Committee in light of a rule of the Supreme Court of New Jersey prohibiting any attempt to collect fees in a case where an attorney is assigned to represent an indigent. New Jersey Rules of Practice R. 1:13-2(b).

Respondent admitted violating the rule, but claimed he had not known it existed and thus had inadvertently violated it. Although Respondent admitted that he knew at the time that he sent the note that McCloud was indigent and that Respondent had been assigned the case because of McCloud's indigence, Respondent argued that he had a good faith belief that he was entitled to a fee should McCloud somehow become able to make payments at a later date.

The Board in New Jersey found that there was clear and convincing evidence that Respondent violated DR 1-102(A)(4) and (5). At a minimum, the Board found that Respondent's letter to McCloud accompanying the promissory note was misleading and deceptive to the client. It was also in direct conflict with the rule against collecting fees from an indigent. In response to Respondent's claim that he was unaware that the rule existed, the Board cited the familiar rubric that ignorance of the law is no defense. It also noted that printed on the first page of the court order appointing Respondent was an admonition that there were to be no legal fees. In mitigation, the Board noted that Respondent was a patent attorney, who had only recently started a private practice and had never handled an indigent assignment or a criminal case before the McCloud matter. The Board concluded that a public reprimand was the appropriate discipline. The New Jersey Supreme Court agreed with the Disciplinary Review Board and entered an order reprimanding Respondent.

Under D.C. App. R. XI, Section 11(c), a determination by a disciplining court in another jurisdiction that a respondent has engaged in misconduct conclusively establishes the misconduct for the purpose of a reciprocal disciplinary proceeding in the District of Columbia unless the respondent demonstrates by clear and convincing evidence that the disciplinary proceeding in the other jurisdiction was lacking in due process, that the proof used to establish misconduct in that procedure was insufficient, or that the misconduct in the other jurisdiction would not constitute misconduct here. In this case, Respondent does not make any of these claims; therefore, we must accept the Supreme Court of New Jersey's determination that Respondent committed misconduct.

Section 11(c) further requires us to impose reciprocal discipline unless Respondent demonstrates by clear and convincing evidence that his case falls within one of five exceptions to this requirement. Respondent argues that his case falls within two of these exceptions: 1) where reciprocal discipline would result in a grave inJustice and 2) where the misconduct in the other jurisdiction would warrant substantially different discipline in the District of Columbia. Therefore, Respondent requests that reciprocal discipline not be imposed and that no additional sanction be imposed. *fn2

In support of this position, Respondent argues before us, as he did in New Jersey, that his ignorance of the rule against attempting to collect legal fees from an indigent and his inexperience in are extenuating circumstances that mitigate against another public reprimand. Respondent denies that he ever received a copy of the order appointing him as counsel and directing that no fees be paid for his services. Respondent believes that the order was either sent to another lawyer with a similar name or sent to his address of record with the court, where he no longer resided.

Additionally, Respondent now introduces an argument that he did not make before the New Jersey Board. Respondent claims that he learned during the course of representing McCloud that McCloud was not actually indigent but had lied to the court in order to obtain an appointed lawyer. Respondent believed that he could not disclose this to the court, however, without violating the attorney-client privilege. It was under these circumstances that he told McCloud that he expected McCloud to pay for Respondent's services if it turned out that he was not indigent. Respondent again cites his inexperience in , explaining that he did not know then, but has since been advised, that the appropriate procedure would have been to seek permission to withdraw for reasons of a confidential nature which, if disclosed, might be prejudicial to his client. *fn3

Bar Counsel argues that Respondent's misconduct would not warrant substantially different discipline here and that reciprocal discipline should be imposed. Bar Counsel does not address Respondent's argument that the imposition of a public reprimand would result in grave inJustice.

The test for determining whether misconduct in another jurisdiction would warrant substantially the same discipline in the District of Columbia is set forth in In re Garner, 576 A.2d 1356, 1357 (D.C. 1990). The central inquiry under this test is whether the discipline imposed by the other jurisdiction is within the range of sanctions that would be imposed here. Id.

Respondent does not cite any cases in support of his contention that public reprimand is not within the range of sanctions for violation of DR 1-102(A)(4) and (5). Bar Counsel argues that Respondent's misconduct would be punished by public censure, citing two cases in which this sanction was imposed for violations of, respectively, DR 1-102(A)(4) and DR 1-102(A)(5). With respect to DR 1-102(A) (4), Bar Counsel cites In re Hadzi-Antich, 497 A.2d 1062 (D.C. 1985), where the respondent was censured for misrepresenting his academic credentials on an employment resume. In that case, the respondent claimed, as Respondent does here, that the misrepresentation was made negligently. *fn4 Id. at 1064. Public censure was also imposed as discipline for violating DR 1-102(A)(4) in In re Christmas, M-21-76 (D.C. June 2, 1976), where the respondent intentionally misrepresented to his clients the status of their appeals from convictions for assault. There, the court stated that public censure is the minimum sanction to be imposed for intentional misrepresentation. Id., slip op. at 3. As Hadzi-Antich and Christmas demonstrate, public censure would be within the range of sanctions imposed in the District of Columbia for Respondent's misconduct whether Respondent negligently misrepresented the terms of the promissory note to McCloud, as Respondent claims he did, or made the misrepresentation intentionally.

It is less clear that public censure is within the range of sanctions for Respondent's violation of DR 1-102(A)(5). Where public censure has been imposed for violation of this rule, there has been a pattern of conduct prejudicial to the administration of Justice, rather than a single instance of such conduct as there is in this case. In the case Bar Counsel cites, In re Solerwitz, 575 A.2d 287 (D.C. 1990), censure was imposed on an attorney who had filed "a series of frivolous appeals, repeatedly violating court orders, and consistently failing to follow appropriate procedural rules." Id. at 288 (emphasis added). Similarly, in In re Bush, D.P. 22-75 (D.C. July 26, 1977), the court censured an attorney who, having been appointed to represent an indigent defendant, failed to file an appeal and to comply with numerous court orders and directives to do so, including an order to show cause why he should not be adjudicated in contempt.

In a case where there was only a single instance of conduct prejudicial to the administration of Justice, informal admonition, rather than censure was imposed. That case, In re Confidential , D.N. 235-78 (Bd. Pro. Resp. November 29, 1979), involved an attorney who procured a notary's attestation to an affidavit although the notary had not been present at the time the affidavit was signed. In light of the attorney's otherwise impressive representation of his client, the fact that the client suffered no prejudice as a result of the misconduct, and the trend toward using declarations signed under penalty of perjury rather than affidavits, the Board declined to adopt the Hearing Committee's recommendation that public censure be imposed. Id., slip op. at 5. The facts of this case lie somewhere in between the pattern of repeated violations presented in Solerwitz and Bush and the single, more innocuous violation presented in In re Confidential. For this reason, it is unclear whether public censure would be warranted by Respondent's violation of DR 1-102(A)(5) if that were the only violation. *fn5

Our Dissenting colleague argues that had Respondent committed these same violations in the District of Columbia, the appropriate sanction would be reprimand by the Board. He believes that a reprimand by the Board is significantly less onerous than a reprimand by the Court and that, therefore, Respondent's misconduct would warrant substantially different discipline in this jurisdiction. As noted before, the rule in this jurisdiction is that identical discipline is to be imposed unless the respondent demonstrates by clear and convincing evidence that substantially different discipline would be warranted in the District of Columbia. D.C. App. R. XI, Section 11(c). We do not believe that the cases cited by our Dissenting colleague establish by clear and convincing evidence that different discipline would be imposed in this jurisdiction.

Our Dissenting colleague argues that in cases in which the misconduct was equal to or greater than the misconduct engaged in by Respondent, a lesser sanction than public censure was imposed. He argues further that in the cases in which public reprimand by the Court or public censure has been imposed, the misconduct was of considerably greater magnitude than the misconduct engaged in by Respondent. In taking this position, our colleague has essentially adopted Respondent's view of the facts. He writes that McCloud "claimed to be indigent" and that Respondent transmitted the promissory note to McCloud because McCloud apparently lied to the court about his indigence. Aside from Respondent's assertions to us, the record contains no such information. Certainly the New Jersey Disciplinary Review Board never found these claims to be true. Our colleague also concludes that the letter transmitting the note to McCloud "was not misleading or deceptive," but the New Jersey Disciplinary Board, which unlike us heard evidence, reached a different Conclusion. Our colleague also accepts Respondent's explanation in the papers filed with us that he never received the court order informing him that he was not to seek fees from his client. Once again, no such findings were made in New Jersey. All of these "facts" lead our colleague to conclude that "Respondent is at most 'guilty' of inadvertently violating a rule. . . ." But New Jersey made no finding that Respondent's violation was inadvertent; rather, it said only that even if the violation were inadvertent because of Respondent's ignorance, that was no excuse. Our Dissenting colleague's analysis of the appropriate sanction is colored by his belief that Respondent has accurately characterized his conduct, but the record does not establish that the New Jersey Disciplinary Board accepted Respondent's characterization.

We also note that there is no case precisely on point. We find it difficult to compare the misconduct in these various cases. For example, in In re Manning, D.N. 355-88 (Bd. Pro. Resp. March 15, 1990), we reprimanded a respondent who failed to deliver promptly to the client the client's property. Specifically, the respondent in that case had failed, probably because he had misplaced them, to return to a client important documents. The absence of these documents prejudiced and inconvenienced the client. Our Dissenting colleague argues that this conduct is more serious and egregious than the conduct of Respondent in trying to collect a debt, not owed to him, by fraudulent or dishonest methods. But there is no absolute measure of misconduct. While the misconduct in Manning may strike our colleague as more egregious, it is equally possible to argue that attempting to take advantage of an indigent, in defiance of court rules and orders, and through dishonest means, is equally egregious. Comparing misconduct arising out of different sets of facts, resulting in the violation of different rules, is not a precise exercise. At bottom, there is an inherent element of subjectivity. We cannot say that our colleague has established by clear and convincing evidence that a sanction lesser than public reprimand by the Court would be imposed in this jurisdiction. Accordingly, following the operation of the Court's rule, we must impose identical discipline.

Respondent has failed to persuade us that his misconduct would warrant substantially different discipline here than that imposed in New Jersey. We agree with Bar Counsel that the punishment imposed on Respondent by New Jersey, public reprimand by the court, is similar to, certainly within the range of, the likely sanction in the District of Columbia, public censure by the court.

Respondent has also failed to present clear and convincing evidence to support his claim that the imposition of reciprocal discipline would result in grave inJustice. Respondent argues that it would be unjust to impose reciprocal discipline in light of his ignorance of the rule against collecting fees from an indigent and his lack of experience in . There is no finding in this record that Respondent's conduct was a result of ignorance. Even if there were, the Court of Appeals has repeatedly rejected this line of argument. In In re Loigman, 582 A.2d 1202 (D.C. 1990), the Court imposed reciprocal discipline despite the respondent's argument that he should not be punished for errors made in the early years of his career. Similarly, in In re Harrison, 461 A.2d 1034 (D.C. 1983), the Court stated that "practitioners in the District are subject to this jurisdiction's code of professional ethics whether or not they are aware of each prohibition." Id. at 1036, n.3. Moreover, even assuming Respondent's ignorance of the court rules and of the court's order, he offers no explanation as to why he contracted with a collection agency to collect a debt from a client who had refused on two occasions to assume responsibility for paying for Respondent's services. *fn6

In a case where the court held that grave inJustice would result from the imposition of reciprocal discipline, this Conclusion was based on the court's finding that the punishment imposed by the other jurisdiction was reserved for much more serious misconduct here. In In re Evans, 533 A.2d 243 (D.C. 1987), the Court declined to disbar the respondent in accordance with the punishment meted out by a federal district court for accusing a magistrate of incompetence and bias. Stating that there was "a gross disparity" between the case at hand and cases in which the Court had disbarred attorneys, the Court censured the respondent instead. Id. at 244. In this case, however, there is no such disparity. As discussed above in connection with Respondent's claim that his conduct would warrant substantially different discipline here, public censure has been used in a number of cases in the District of Columbia to punish attorneys for misrepresentation and conduct prejudicial to the administration of Justice.

Our Dissenting colleague argues that imposition of reciprocal discipline would result in a grave inJustice because the misconduct in question occurred more than eight years ago. He further argues that the record does not disclose that Respondent was responsible for this delay. We note, first, that there is no statute of limitations with respect to disciplinary violations. Perhaps there should be, but the Court has not seen fit to establish one. Moreover, although the record does not disclose that this delay was the fault of Respondent, neither does it disclose that it was not his fault. Respondent has not established the reason for the delay or that a grave inJustice would result from the imposition of reciprocal discipline in this case. Although we can foresee instances in which delay might result in a grave inJustice -- such as, for example, a situation in which because of delay unattributable to a Respondent, evidence disappeared and witnesses were not longer available -- this is not that case. Without some sort of affirmative showing of prejudice, in the absence of any statute of limitations, we cannot conclude that because of unexplained delay alone, a grave inJustice would result from the imposition of reciprocal discipline in this case. Additionally, whatever the reason for the delay in New Jersey, there has been no delay in this jurisdiction.

Because Respondent has failed to show that his misconduct would warrant substantially different discipline here than in New Jersey and because he has failed to show that reciprocal discipline would result in grave inJustice, we recommend that reciprocal discipline be imposed in this case for violations of DR 1-102(A) (4) and (5), in accordance with the order of the Supreme Court of New Jersey, dated January 16, 1991. Under D.C. App. R. XI, Section 11(f), the discipline imposed on Respondent must be identical to that imposed in New Jersey. Although normally public reprimands are imposed by the Board, so that the discipline will be identical, we recommend that the Court of Appeals issue a public reprimand. *fn7

By: Hamilton P. Fox, III

December 26, 1991

All members of the Board concur in this Report and Recommendation, except Mr. Cohen, who did not participate, and Mr. McKay, who has filed a Dissenting opinion.

DISSENTING OPINION OF JAMES C. McKAY

I respectfully Dissent to the recommendation of the majority of the members of the Board that reciprocal discipline be imposed in this case, and that Respondent be publicly reprimanded by the D.C. Court of Appeals.

Specifically, I recommend that the sanction imposed on Respondent be at most a reprimand by the Board for the reasons that (1) the misconduct established warrants substantially different discipline in the District of Columbia than was imposed by the Supreme Court of New Jersey, and (2) the imposition of the same discipline would result in grave inJustice.

BACKGROUND

On January 16, 1990, the Supreme Court of New Jersey issued an order publicly reprimanding Respondent. The order was based on a decision of the New Jersey Disciplinary Review Board that Respondent "be publicly reprimanded based on its determination that respondent's conduct in 1983 and 1984, in attempting to collect a legal fee from an indigent whom he was assigned to represent, was unethical and in violation of DR 1-102(A)(4) and (5) and superseding RPC 8.4(c) and (d)."

In August of 1983, Respondent was assigned by the New Jersey municipal court to represent Arthur McLoud, who had been charged with the non-indictable criminal offense of obtaining employment benefits from the State of New Jersey while employed as a truck driver. Since Mr. McLoud claimed to be indigent, the last sentence of the court's order stated: "There are no counsel fees UNDER THIS."

Thereafter, Respondent sent a promissory note in the amount of $1,500 to his client accompanied by a letter which stated that the note was being sent "so that in the event you do not become indigent in the future, you will be able to pay your obligation for my professional services." Respondent's client refused to sign the promissory note.

In October of 1983, Respondent's associate again requested that the client sign the promissory note. That request was refused. In October of 1984,the client received a letter from a collection agency stating that it would take any steps necessary to enforce the collection of $1,500 in legal fees owed to Respondent. There is no evidence in the record that the collection agency took any such steps.

New Jersey Rule R 1:13-2(b) provides in pertinent part:

"except as provided by Order of the Court no attorney assigned to represent a person by reason of poverty shall take or agree to take or seek to obtain from the client, payment of any fee, profit or reward for the conduct of such proceeding for office or other expenses."

The New Jersey hearing committee found Respondent's conduct to be deceitful and prejudicial to the administration of Justice. The committee did not indicate the specific ethical rules that had been violated. The New Jersey Disciplinary Review Board noted that the Rules of Professional Conduct took effect in New Jersey on September 10, 1984, and, since it concluded that Respondent's behavior occurred both before and after the enactment of those rules, the Board determined that "the Rules of Professional Conduct and their equivalents in the Disciplinary Rules DR 1-102(A)(4) and (5) apply." Accordingly, the Disciplinary Review Board found that Respondent's conduct violated both sets of rules. The New Jersey Board rejected Respondent's explanation that the purpose of his letter accompanying the promissory note was to inform his client that he would be obligated to pay the note only if the client received funds at a later date, and was no longer indigent. The Board concluded that the letter was misleading and deceptive because the promissory note itself contained no such condition, and was payable on its face in 31 days.1b

In mitigation, the New Jersey Disciplinary Review Board took into account the fact that Respondent was a corporate patent attorney, who had been in private practice for three years. Respondent had not previously handled an indigent assignment or a criminal case. Although not mentioned as mitigating factors by the New Jersey Disciplinary Review Board, it is apparent that the client was not prejudiced by Respondent's questioned conduct, nor had Respondent been previously disciplined.

Respondent responded to Bar Counsel's Statement in this District of Columbia proceedings by letter dated August 12, 1991. Respondent recited the circumstances of his appointment to represent Mr. McLoud, pointing out, among other things, that he learned of his appointment in a telephone call from the clerk of the Municipal Court, and that he never received a copy of the order appointing him as counsel. Thus, he was not aware of the statement on the order of the court that "there are no counsel fees UNDER THIS."

Respondent's August 12, 1991, letter also included an assertion that his client had lied to the Court regarding his indigency. It appears that this information prompted Respondent to transmit the promissory note to Mr. McLoud, together with the cover letter which in effect informed him that he would not be obligated to pay for Respondent's legal services so long as he was indigent.

Respondent proceeded to represent his client effectively, and was able to obtain a plea bargain under which, despite his alleged indigency, Mr. McLoud made restitution to the State of New Jersey, and was not incarcerated.

Discussion

Rule XI, Section II, of the Rules of the District of Columbia Court of Appeals provides, in part, that reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, the existence of any one of five circumstances. These include that "the misconduct established warrants substantially different discipline in the District of Columbia," and that the "imposition of the same discipline would result in grave inJustice."

If the D.C. Court of Appeals determines that Respondent violated either DR 1-101(A)(4) or DR 1-101(A)(5), or both, I believe that the sanction imposed should be at most a reprimand by the Board, and not a public reprimand by the Court. In my opinion, the misconduct established warrants substantially different discipline in this jurisdiction than was imposed in New Jersey. Moreover, the sanction of reprimand by the Court would result in grave inJustice.

At the outset, it is pertinent that Respondent's questioned conduct occurred in September and October of 1983, more than eight years ago. No excuse or explanation appears in the record for the dilatoriness of the New Jersey agencies. Certainly, there is no indication that Respondent was responsible for that inordinate delay. Although, in a recent New Jersey reciprocal discipline case, it was determined by the D.C. Court of Appeals that a substantial delay in the Disposition of charges involving the respondent's conduct between 1977 and 1984 did not result in grave inJustice, the respondent in that case was publicly reprimanded for conduct involving three separate disciplinary matters. In re: Loigman, 582 A.2d 1202 (D.C. 1990). Here, the two violations charged against Respondent stem from a single episode under circumstances which, in my view, justify mitigation of any sanction that otherwise might be imposed.

I believe that the majority goes too far in implying, on the basis of In re Willcher, 447 A.2d 1198 (D.C. 1982), that Respondent's conduct in this jurisdiction might have resulted in automatic disbarment. (Op. at 8, f.n. 5) The respondent in Willcher violated a criminal statute when he engaged in unlawful conduct involving moral turpitude while representing a client in a CJA Case. A District of Columbia criminal statute expressly prohibits a CJA attorney (who is compensated at the rate of $35.00 an hour) from receiving or seeking to receive "other payment" from the indigent defendant. D.C. Code, Title 11, § 11-2606. The respondent in Willcher was found by the Court of Appeals to have committed a "double fraud," one on his client, "who was entitled by the CJA to a 'free lawyer,' and his family; and one on the judicial system itself." (447 A.2d at 1200) Here, there was no violation of a criminal statute.2a There was no "fraud" perpetrated on any person or on the judicial system. There was no conduct that conceivably could have been the basis of a criminal prosecution or disbarrment in New Jersey or the District of Columbia. Respondent is at most "guilty" of inadvertently violating a rule of the New Jersey Supreme Court. In my opinion, the Willcher case cannot properly be the basis for a determination of any sanction that should be imposed on Respondent.

Cases In Which Censure by the Court was Ordered

A number of decisions of the D.C. Court of Appeals support the Conclusion that a public reprimand by the Court would be too harsh a sanction to impose in the instant case. Thus, in In re Thompson, 478 A.2d 1061(D.C. 1984), the respondent was found to have engaged in conduct prejudicial to the administration of Justice and neglect of a legal matter on three occasions involving three separate cases and three separate clients. In the first matter, the respondent twice failed to appear at his client's probation revocation hearing. In the second, the respondent failed to appear at the commencement of a trial, the scheduled date of which the respondent himself had set. In the third, the respondent failed to appear for a status conference in a civil case. In recommending the sanction of public censure, the Board cited the respondent's conduct as evidence of a "continuing pattern of disregard for" the respondent's "obligation to the Court and for the need to conserve judicial resources." (478 A.2d at 1064) The record showed also that the respondent had a disciplinary record, having been informally admonished in March of 1979 for untimeliness in making a court appearance.

In a factual context which, I believe warranted a substantially more severe sanction than should be imposed on Respondent, the D.C. Court of Appeals ordered that the respondent be formally censured. Here, there was no continuing pattern of misconduct. We have only a single episode which occurred more than eight years ago involving an attorney without a disciplinary record under circumstances which, in my view, justify excusing Respondent's conduct.

As noted above, the respondent in Loigman, (supra) , also was found to have been involved in three separate disciplinary episodes. In the first, the respondent accepted private employment in a matter in which he had had considerable responsibility while a public employee. In the second, he was found to have violated DR 1-102(A)(6) by engaging in conduct that adversely reflected on his fitness to practice law, and in violation of DR 7-102(A)(2) by knowingly advancing a claim unwarranted under existing law. In the third,the respondent was found to have violated DR 6-101 as a result of his gross neglect of a legal matter and his failure to communicate with his client, which resulted in a default judgment.

The Court of Appeals ordered that the respondent in Loigman be publicly reprimanded for conduct that obviously was substantially more serious in nature than the conduct of Respondent, which the majority of the Board believes also warrants a public reprimand by the D.C. Court of Appeals.

The majority also relies on In re Hadzi-Antich, 497 A.2d 1062 (D.C.App. 1985), in support of the recommendation that Respondent be publicly reprimanded by the D.C. Court of Appeals. In that case, the respondent was found to have violated DR 1-102(A)(4) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The respondent had submitted a resume to the Southern Methodist University School of Law which contained false information. Specifically, the respondent lied when he stated that he had graduated first in a class of 185 students at the Oklahoma Law School, that he had been Editor-in-Chief of the Oklahoma Law Review, and that he had graduated summa cum laude from the University of Connecticut. In its opinion, adopted by the Court of Appeals, the Board noted that "when a fraud of this type is perpetrated there is a direct assault on the ethical code that binds advocates of law . . . When information is false, there is a direct injury to other qualified persons whose accomplishments are unfairly subordinated." (497 A.2d at 1065)

In adopting the Board's recommendation that the respondent be publicly censured, the Court of Appeals relied on a number of cases in which public censure was imposed, including one in which the respondent, a student, who was enrolled in a graduate program, plagiarized two published works; another in which the respondent was censored for misrepresenting his academic credentials on his resume and giving false information about his tax returns on a job questionnaire; and still another in which the respondent misrepresented his achievements on his resume and misused professional credentials of his law school professors. (497 A.2d at 1063). In my view, the conduct involved in each of those cases was substantially more egregious than Respondent's questioned conduct.

In the case of In re Solerwitz, 575 A.2d 287 (D.C. 1990), relied upon by Bar Counsel and to a degree by the majority, the respondent was publicly censured after being suspended for one year by the United States Court of Appeals for the Federal Circuit for filing "a battery of frivolous appeals" after having been repeatedly warned by the Federal Circuit about the impropriety of maintaining frivolous appeals in the face of decisions in the "lead cases" involving issues similar to those cases being handled by the respondent. The Federal Circuit found specifically that respondent had:

(1) Filed and maintained petitions that were clearly frivolous.

(2) Abused the judicial process.

(3) Filed briefs devoid of any showing on which the decision appealed from could possibly be reversed, or on which earlier decisions of the Federal Circuit could be distinguished.

(4) Violated procedural rules of the Federal Circuit pertaining to appendices and citations to the record in briefs.

(5) Filed reply briefs that ignored many authorities cited by the Government.

(6) Advanced arguments in his briefs that were not properly before the Court because they had not been raised below or for other reasons.

(7) Failed to support assertions in his briefs with references to the record.

Again, such persistent misconduct on the part of the respondent in Solerwitz, in the face of repeated admonitions by the Court, was substantially more egregious than the single episode in which Respondent was involved.

Other cases relied upon by the majority, in which the sanction of censure by the Court was imposed, are In the Matter of Bush, D.P. 22-75 (D.C. July 26, 1977); In the Matter of Christmas, M-21-76 (D.C. June 2, 1976). One need only read the Court of Appeals recital of the respondent's derelictions in Bush to reach the immediate Conclusion that there is no comparison between that conduct and the conduct of Respondent in the instant case. The respondent's conduct in Bush involved repeated failures to comply with orders of the Court of Appeals, resulting in the issuance on three occasions of orders to show cause why he should not be held in contempt. When the respondent failed to comply with the third order to show cause, he was ordered by the Court of Appeals to appear personally in open court on a specified date. The respondent did not appear. In response to a summons served personally on him, the respondent appeared in Court with counsel. At that time, the Court adjudicated him to be in contempt, imposed a fine of $250.00, and vacated his appointment as counsel.

In ordering that the respondent be publicly censured, the Court expressed its agreement with the Disciplinary Board that "respondent's conduct has exemplified such disrespect for the processes and rules of this court as to be 'plainly intolerable.'" Public censor was "warranted to maintain the integrity of the profession and the deterrence of other lawyers from engaging in similar misconduct."

There is no need in the instant case to send out a message to the bar so that other lawyers will not engage in conduct similar to that engaged in by Respondent. Certainly, a reprimand by the Board on Professional Responsibility would serve as a sufficient sanction and as a sufficient deterrence to Respondent to refrain from engaging in similar conduct in the future.

The facts in Christmas, (supra) , also are far more egregious than those involved in the instant case. There, the respondent permitted the dismissal of appeals, for failure to prosecute, of two clients who had been convicted of serious criminal offenses. Not only did the respondent fail to inform his clients of the dismissals, he allowed them to believe that the appeals were still pending after they had been dismissed. During the hearing, the respondent expressly admitted that he had misled his clients.

The Court of Appeals agreed with the Conclusion of the Disciplinary Board that the respondent had "knowingly misled his clients and their relatives in a well-intentioned but clearly unprofessional effort to substitute his judgment for theirs . . . and such intentional as opposed to neglectful misconduct should receive public censure at a minimum. . . ."

In the case of In re Evans, 533 A.2d 243 (D.C. 1987), relied upon by the majority, although the Board on Professional Responsibility recommended that the respondent be suspended for a period of 90 days, the D.C. Court of Appeals ordered that the respondent be publicly censured.

In Evans, the United States District Court for the District of Maryland ordered the respondent disbarred from the practice of law in that court for violation of DR 1-102(A)(5) (conduct prejudicial to the administration of Justice); DR 7-106(C)(6)(engaging in undignified or discourteous conduct which is degrading to a tribunal); and DR 8-102(B)(making false accusations against a Judge or other adjudicatory office). The order of disbarrment was affirmed by the Fourth Circuit. The D.C. Court of Appeals, finding no precedent to support the imposition of a suspension, and noting that the traditional method for dealing with contumacious behavior in the course of a judicial proceeding is to cite the offending attorney for contempt, ruled that a public censure of the respondent was the appropriate discipline.

The offenses of the respondent in Evans resulting in disbarrment from practice in the District Court were, in my opinion, substantially more egregious than Respondent's conduct in the instant case.

Pertinent, too, is the ruling of the Court of Appeals in In the Matter of Austern, 524 A.2d 680 (D.C. 1987). There, the respondent was charged with violating DR 1-102(A)(4) and DR 7-102(A)(7) by engaging in conduct involving dishonesty and misrepresentation, and by counseling or assisting a client in conduct that the lawyer knows to be illegal or fraudulent. Despite the "gravity of respondent's misconduct," the Court ordered that the respondent be publicly censured. Neither dishonesty nor misrepresentation was involved in the instant case. In my opinion, the sanction to be imposed here should be of a less serious nature than the sanction imposed in the Austern case.

In the case of In re Ingram, A.2d (D.C. 1991), the respondent engaged in commingling in violation of DR 9-103(A) by depositing into his personal account a check for $6,000 issued to himself and his client in settlement of a personal injury action. And yet, the sanction was only public censure. In reaching its decision, the Court of Appeals held that the sanction of public censure was consistent with the discipline imposed by the Court in previous cases involving similar conduct, citing In re Gilchrist, 488 A.2d 1354 (D.C. 1985); and In re Artis, No. M-103-81 (D.C. February 25, 1982).

Public censure was ordered in Ingram despite the Court's earlier admonition in In re Hessler, 549 A.2d 700 (D.C. 1988), where the Court "'emphasized the ban against commingling to alert the bar that in future cases of even 'simple commingling,' a sanction greater than public censure may well be imposed.'"

I believe that the sanction to be imposed in the instant case should be substantially less onerous than those imposed in Ingram, Gilchrist, and Artis.

Cases In Which Board Reprimand or a Less Severe Sanction Was Ordered

The sanction of a Board reprimand also has been imposed in cases which involved conduct more egregious than Respondent's conduct. For example, the Board recently issued a reprimand in a reciprocal discipline case after determining that the respondent had violated DR 6-101(A)(1)("A lawyer shall not . . . handle a legal matter he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it."); and DR 6-101(A)(1) ("A lawyer shall not . . . handle a legal matter without preparation adequate in the circumstances.") The Board also found that the respondent's conduct constituted neglect under DR 6-101(A)(3), citing In re Taylor, No. 83-1027 (D.C. April 24, 1984). In the Matter of Oberbauer, Bar Docket No. 272-90.

The sanction of a Board reprimand was imposed in Oberbauer despite the fact that the client, unlike Respondent's client in the instant case, was prejudiced by his misconduct. Thus, the Board noted in the Oberbauer opinion that: "As a result of the mechanics lien and unsatisfied deeds of trust, Respondent was unable to secure a final title insurance policy as per complainant's requirement." (Board Op. at 2)

In the case of In the Matter of Manning, Bar Docket No. 355-88, the respondent was reprimanded by the Board, after being found to have violated DR 9-103(B)(4)("A lawyer shall . . . promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.") The Board opinion reflects a persistent and inexcusable failure of the respondent to respond for a prolonged period of time to repeated requests by his client to return important documents, including copies of income tax statements for three years, mortgage payments, car titles, canceled checks, loan books and pay stubs.

Although not charged with a violation of DR 1-102(A)(5), the respondent, in refusing to reply to Bar Counsel's inquiries, clearly engaged in conduct that was prejudicial to the administration of Justice. Moreover, the respondent failed to respond to Bar Counsel's petition, and did not appear at the hearing.

The Board opinion makes it clear that the respondent's clients were severely prejudiced by his misconduct. Thus, it was noted that the clients had "suffered considerable inconvenience and expense because Respondent failed to return the records." (Board Op. at 3). As of the time, of the hearing, the clients had been unable to replace certain tax records. Also, for lack of a car title, one of their automobiles had to be "junked" because replacement tags could not be obtained.

Despite this obvious and egregious misconduct, resulting in serious prejudice to the client, the sanction imposed on the respondent in Manning was only Board reprimand. In my view, Respondent's questioned conduct clearly does not warrant a more severe sanction. There was no such persistent misconduct in the instant case as there was in Manning, nor was Respondent's client prejudiced as were respondent Manning's clients.

The majority, in recommending that Respondent be censured by the Court, refers to In re Confidential, Bar Docket No. 235-78 (Bd. Pro. Resp. November 29, 1979), in which the Board recommended an informal admonition -- the least onerous of all of the available sanctions short of probation with no conditions. There, the respondent, on four separate occasions, procured the signature of an affiant of affidavits outside of the presence of the notaries public. The Board on Professional Responsibility found that the respondent had violated DR 1-102(A)(4)(misrepresentation to and deceiving of the Superior Court); DR 7-102(A)(5) (knowingly making false statements of fact in his representation of a client); and had twice violated DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of Justice).

The Board rejected the Hearing Committee's recommendation that the sanction of a public reprimand be imposed, and, as stated, imposed the lesser sanction of an informal admonition. In reaching that decision, the Board was influenced by the respondent's zeal and energy in representing his client, the fact that the client was not prejudiced, and the growing movement to replace notarized affidavits with signed declarations under penalty of perjury.

Similar mitigating factors are present in the instant case. This Respondent's client suffered no prejudice; in fact, he was served well by his attorney. And here, unlike the situation in In re Confidential, as well as in all of the other cited cases, Respondent's questioned conduct was either unintentional or arose from a lack of familiarity with the applicable rule of court. In the circumstances of this case, those factors cannot be brushed aside by a solemn pronouncement that "ignorance of the law is no defense." Since the sanction of an informal admonition was ordered with respect to that respondent, without ever identifying him, surely a Board reprimand which will identify Respondent is more than adequate.

Conclusion

I agree with the majority that there is no case precisely on point. There never is. I do, however, disagree with the assertion that it is "difficult to compare the misconduct in these various cases." However, even if that is so, such a comparison necessarily must be made on almost every occasion that the Board is confronted with a disciplinary matter in order to make a proper determination as to the sanction which should be imposed. In my view, each comparison requires a careful and searching analyses of the facts and circumstances of the relevant cases. This is what I have attempted to do here. And, as indicated, my analyses impels me to conclude that the sanction of a public reprimand by the Court of Appeals would not be justified and would result in grave inJustice.

I recognize that the Court of Appeals will impose the same discipline that was imposed in the foreign jurisdiction if that discipline is "within the range" of sanctions that would be imposed in this jurisdiction for the same misconduct. In re Garner, 576 A.2d 1356, 1357 (D.C. 1990). In my view, the conduct of Respondent was not sufficiently similar to those in which the Court of Appeals has imposed the sanction of public censure to warrant its application in this case. There is a substantial difference between the sanction of public censure by the D.C. Court of Appeals and that of a reprimand by the Board. That difference is reflected in Rule XI, Section 3(a) which lists them as different "types" of discipline. Moreover, the sanction of a Court censure is revealed to the legal world through the Atlantic Second reports; a Board reprimand is revealed only to a limited extent to those members of the D.C. Bar that read the local Bar Journal.

In sum, it is my opinion that Respondent's conduct does not warrant the serious sanction of public reprimand by the Court. As already noted, there were extenuating circumstances which should be taken into consideration. Moreover, the episode occurred more than eight years ago. Respondent had no previous disciplinary record, and apparently his record has been unblemished during the long period of time since he engaged in the questioned conduct. His client was not prejudiced by the transmittal of the promissory note to him, or by the legally ineffective efforts made to obtain payment of an unenforceable note. In fact, the client was well served by Respondent's efforts. At most, the sanction of a reprimand by the Board should be imposed. To accept the recommendation of the majority would result in grave inJustice.

Respectfully submitted,

James C. McKay

Dated: January 3, 1992


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