On Report and Recommendation of the Board on Professional Responsibility
Before Ferren and Sullivan, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Newman
NEWMAN, Senior Judge: The Board on Professional Responsibility (Board or BPR) concluded that Fowler violated DR 7-101 (A)(1) (intentionally failing to seek the lawful objectives of a client), and DR 9-103 (B)(4) (failing to promptly pay or deliver client's funds). Briefly stated, the Board found that after being retained (and paid) to file a motion for a new trial in a case involving two felony convictions, Fowler not only intentionally failed to file the appropriate motions, but refused to return the fee upon demand. After a remand from this court, the Board recommends that Fowler be suspended for thirty days, with execution of the sanction being "suspended." We are required to "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended Disposition of the Board unless to do so would foster a tendency toward inconsistent Dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9 (g). We accept the findings of fact of the Board on the violations and hold that Fowler did indeed violate the above-cited disciplinary rules. However, since the sanction recommendation is (1) based upon a finding relevant only to the sanction which is directly contrary to the record; (2) would foster inconsistent discipline; and (3) is thus "unwarranted," we reject the Board's recommendation that execution of the sanction be suspended. We impose a thirty-day suspension to be served.
The Board recommended that the "sanction be suspended . . . [because of] . . . the length of time that has passed since the initiation of Bar Counsel's investigation and the date in the future on which the Court of Appeals may impose a sanction . . . where none of the lengthy delay is attributable to Respondent[,]. . . the actual imposition of . . . [such a] . . . suspension would be unfair." (Emphasis added.) To properly evaluate the Board's factual finding that "none of the lengthy delay is attributable to Respondent," it is appropriate to set forth the chronology of these proceedings, in so far as the record before us discloses.
October 1988 -- Actions by Fowler which are the basis of these proceedings.
May 1989 -- Bar Counsel's Petition Instituting Formal Disciplinary Proceedings.
July 1989 -- Hearing before Hearing Committee Number Ten with full briefing.
December 1989 -- Report of Hearing Committee filed with the Board.
July 31, 1991 -- BPR's Report and Recommendation (R & R) filed with the District of Columbia Court of Appeals.
August 22, 1991 -- Fowler's motion to extend time to file exceptions to BPR's R & R until September 9, 1991.
August 29, 1991 -- Order granting Fowler' extension to file exceptions.
September 9, 1991 -- Fowler's exceptions to BPR's R & R filed.
September 11, 1991 -- Order requiring Fowler's brief to be filed with this court in forty days with Bar Counsel's ...