Before Steadman and Ruiz, Associate Judges, and Gallagher, Senior
The opinion of the court was delivered by: Steadman, Associate Judge
A Member of the Bar of the District of Columbia Court of Appeals
On Report and Recommendation of the Board on Professional Responsibility
Respondent Jeanne Robinson committed disciplinary violations that resulted in unnecessary incarceration of her client and failed to cooperate in Bar Counsel's subsequent investigation. The facts regarding the misconduct are stipulated. The only issue before us is one of sanction.
Respondent argues for disability-related mitigation under the doctrine of In re Kersey, 520 A.2d 321 (D.C. 1987). On a remand from this court, both a Hearing Committee and the Board on Professional Responsibility (Board) concluded that respondent had not shown substantial rehabilitation. The Board recommends that respondent be suspended for sixty days, with a requirement of fitness. *fn1 Respondent asserts that she in fact met her burden of showing rehabilitation and also challenges the imposition of a fitness requirement for reinstatement. We adopt the recommendation of the Board.
The disciplinary case is before us for the second time and has an extended procedural history. In 1993, Bar Counsel filed a petition charging Robinson with violations of the following Rules of Professional Conduct: Rule 1.3(c) (failure to act with reasonable promptness in representing a client); Rule 1.4(a) (failure to keep client reasonably informed about the status of the case); Rule 8.4(d) (conduct which seriously interferes with the administration of Justice); and D.C. App. R. XI, § 2(b)(3) (failure to respond to Board order compelling a response). The charges stemmed from Robinson's neglect in her representation of a client in a criminal matter in which she failed to keep contact with the client, to file a bond review motion on his behalf, resulting in a lengthening of his jail stay, and to appear at a hearing, as well as Robinson's failure to respond to inquiries in the course of Bar Counsel's investigation. Bar Counsel and Robinson stipulated to the facts concerning her conduct and it was uncontested that the conduct constituted misconduct as alleged.
Robinson presented disability-related mitigation evidence that she suffered from dysthymia, a form of long-term depression, that the charged disciplinary violations would not have occurred but for her disability, and that her condition could be controlled with appropriate treatment of weekly psychotherapy. *fn2 On this basis, the Hearing Committee recommended a thirty day suspension, with execution stayed, and probation, but the Board disagreed that rehabilitation had been established. Before us, Robinson proffered a further medical report and, at the Board's request, we remanded the case in 1996 by an unpublished order for further consideration of the issue of rehabilitation. Also following the Board's recommendation, we conditioned the remand with the requirements "that respondent be supervised by a practice monitor selected by the Board, and that she undergo counseling by a medical expert, acceptable to the Board, on a weekly basis, or less frequently if so recommended by the medical expert." *fn3
The Board in turn remanded the matter to a Hearing Committee for specific findings as to whether Robinson established her rehabilitation by clear and convincing evidence. The Board further ordered that Robinson's practice be monitored by Richard L. Cys, Esquire, and that Robinson file with the Board within 14 days the name of a medical expert from whom she would receive counseling and file quarterly reports from such medical expert.
On remand, the Hearing Committee heard testimony from Dr. Michael Barnes, a psychologist who had testified in the original proceedings in 1994 that Robinson had dysthymia, in addition to personality characteristics such as passive/aggressive features and coping mechanisms that affected her functioning. According to Dr. Barnes' testimony at that time, Robinson's dysthymia resulted in her "procrastination, inefficiency, and unintentional forgetting," which caused her professional misconduct. At the remand hearing on April 9, 1997, Dr. Barnes testified that he did not think that Robinson any longer suffered from "the significant influence of dysthymia or passive/aggressive coping mechanisms that she initially suffered from," and that he did not think she was at risk for neglecting her responsibilities. The Hearing Committee "found Dr. Barnes' testimony inconsistent, incomplete, and unpersuasive," because it was based primarily on reports from Robinson and her attorney about her functioning; it did not address Robinson's behaviors on remand that seemed to indicate she was continuing to exhibit procrastination, inefficiency and unintentional forgetting; and it failed to persuasively explain how her dysthymia had suddenly gone away without therapeutic treatment.
Bar Counsel presented the testimony of Dr. Richard Ratner, a forensic psychiatrist, who testified that Robinson never had dysthymia, although she may have had an episode of a major depressive disorder at the time of her misconduct. He further testified that, if Robinson had had a major depressive episode, that episode had ended. Dr. Ratner also testified that Robinson had personality pathology including narcissistic, passive/aggressive, and obsessive compulsive characteristics, as well as evidence of an organic disorder. *fn4 He testified that he expected that the personality pathology had probably diminished between 1993 and 1996, although it was still present, and that the "organicity" might impact on Robinson's ability to practice law. Dr. Ratner concluded that Robinson was "mildly dysfunctional" as a result of the personality pathology and "organicity" and was "marginally capable of doing an adequate job," while noting that he would be concerned if she took on more cases (she had three active cases at the time). When informed for the first time that Robinson had failed to comply with the Board's remand order that she provide the Board with the name of a treating medical professional and provide quarterly reports regarding her treatment, Dr. Ratner stated that this should cause the Committee some concern because Robinson should have either complied with the order or acted to change it, rather than just ignoring it. *fn5
The Hearing Committee also received the reports of the practice monitor, Richard Cys, and took his testimony at a second hearing on May 13, 1997. Mr. Cys first met with Robinson on January 7, 1997 and at this time explained to her that she needed to have basic practice aids, including a calendar, case list, case files, and a way of keeping track of court dates and deadlines. He also suggested she obtain a phone to communicate with her clients and stressed that she should comply with the Board's order that she report on her treatment by a medical expert. Mr Cys requested Robinson to bring a list of her current cases, her case files, and her calendar to their next scheduled meeting. Robinson failed to appear at their next scheduled meeting, later claiming a misunderstanding. At the next meeting on February 13, Robinson did not bring, as instructed, a list of her current cases, her current cases files, or a current calendar. Mr. Cys again stressed the importance of such basic practice aids and requested that she bring them to the next meeting. *fn6 At the next meeting on March 18, Robinson brought a list of her current cases, which Mr. Cys felt that she had prepared just before the meeting, but did not bring case files or a calendar. When Robinson reported that she could not find a calendar that was appropriate or inexpensive enough, Mr. Cys stressed the importance of a calendar and that she could draw one by hand on blank paper. He also asked her to send him a copy of her list of cases, but she never did. Mr. Cys testified that he was concerned about Robinson's method of case management and that, although her manner of tracking cases and making scheduled appearances was minimally adequate given that she had only three active cases, if she took on more cases he worried that she would be at risk for violating the Rules of Professional Conduct.
Robinson also testified before the Hearing Committee at the May 13 hearing. The Committee found her testimony to be "disjointed," "troubling," and "convoluted." Robinson's explanation for not filing reports with the Board to document weekly counseling was that she did not have health insurance or money to pay for counseling and she could not find a provider with whom she was comfortable. She also explained her failure to comply with this part of the Board's order by stating: "[W]hen I got this notice in my folder, I read it very quickly. And, I really blew that Order, that part of the notice." When asked why she did not file a motion with the Board regarding her difficulties in complying with the Order, she stated that "it didn't occur to [her]." Robinson could not show the Committee a 1997 calendar to keep track of cases. *fn7 When asked why she did not bring her current case files to meetings with Mr. Cys as he had repeatedly requested, Robinson replied that she "did not understand that he wanted to see the [current case] files . . ." When asked why she did not send Mr. Cys a copy of her case list as requested, she said that she did not have the money to xerox and mail it to him and that "it's on my desk and it's -- you know, I look at it ...