Appeal from an Order of the Board on Professional Responsibility Directing Imposition of an Informal Admonition
Before Ferren, Acting Chief Judge,* and Steadman and Farrell, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: The Board on Professional Responsibility (BPR), reversing a recommendation of no discipline by a Hearing Committee, directed Bar Counsel to impose the mildest form of discipline -- an informal admonition -- on respondent because, while appointed to represent a convicted defendant on appeal under the Criminal Justice Act (CJA), respondent agreed simultaneously to file a motion to reduce sentence in the Superior Court in return for a payment of $200 from the defendant personally. The Board found this to be conduct prejudicial to the administration of Justice, in violation of DR 1-102 (A)(5). *fn1 Respondent contests the discipline by asserting that he lacked the culpability necessary to support a finding of violation of the rule, and that Bar Counsel failed to prove that his agreement to accept the fee interfered with (was "prejudicial to") the administration of the CJA. We conclude that an informal admonition is warranted in this case, and sustain the Board's direction to Bar Counsel.
Since the facts as recited by the Board are not in essential dispute, we reproduce them in the Board's language with minor emendations, deleting footnotes and record citations. Respondent was admitted to the practice of law in the District of Columbia on June 25, 1984. Over the course of his career in private practice, he practiced personal injury law, domestic relations law and . On March 28, 1989, this Court appointed him to his third CJA appellate case. The appointment came thirty-nine days after the defendant-complainant had been sentenced to a prison term of six to eighteen years.
On June 5, 1989, respondent was asked by the complainant to file a motion in the Superior Court to reduce his sentence. Respondent was reluctant to engage in this endeavor because he had never filed such a motion. The complainant expressed the urgency with which the motion had to be filed *fn2 and, as an incentive, volunteered that his relatives would pay respondent a legal fee of $200.00. Respondent agreed to file the motion and to "trust" the complainant for the $200.00.
Respondent neither applied for nor entertained the thought of seeking a CJA appointment in the Superior Court for purposes of being compensated for filing the motion. According to respondent, he believed that the appointment under the CJA to represent the complainant on appeal did not preclude him from accepting a fee for representation at the trial level. Similarly, he never envisioned that the rules governing his appellate appointment would also apply to any representation provided to the client in the Superior Court.
On June 13, 1989, respondent filed a motion and apprised the complainant of the filing. The complainant, in turn, promised to make arrangements for payment of the promised legal fee. During further conversations, the complainant asked respondent to represent him in a civil suit and to investigate why he had been moved from the District of Columbia Jail to Lorton and later, to Arizona. Respondent refused to broaden the scope of his representation to include these additional matters. The motion to reduce sentence was eventually denied.
The complainant became upset when respondent did not accede to his request to represent him in the civil matters. He then told respondent that he was not going to make arrangements for the payment of the $200.00. Respondent told him that their relationship would "probably be unpleasant" if the complainant reneged on his promise.
In August 1989, the complainant wrote a letter to the Chief Deputy Clerk of the District of Columbia Court of Appeals stating that:
Court appointed councilor * * * whom was or maybe still is handling my appeal , is charging me for his services. I was under the impression that there was no fee.
The letter requested the Chief Deputy Clerk to appoint him a new attorney. On September 6, 1989, the Chief Deputy Clerk wrote respondent requesting an answer to the complainant's letter. On September 12, 1989, respondent wrote the complainant, with a copy to the Chief Deputy Clerk. Respondent admitted he had charged the complainant a $200.00 fee to file the motion to reduce sentence. He then waived the fee and urged the complainant to seek new counsel. This Court allowed respondent to withdraw his appearance. On September 20, 1989, the Clerk of the Court referred this matter to Bar Counsel.