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In re Hitselberger

October 26, 2000

IN RE: MYKEL HITSELBERGER, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


Before Terry and Washington, Associate Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Per Curiam

On Report and Recommendation of the Board on Professional Responsibility

Submitted September 28, 2000

On December 2, 1998, respondent Mykel Hitselberger was disciplined in Maryland for violating eight disciplinary rules relating to two separate acts of neglect of client matters. *fn1 The Maryland Court of Appeals imposed an "indefinite suspension" on respondent.

On February 3, 1999, this court suspended Hitselberger from the practice of law in the District of Columbia, and directed the Board on Professional Responsibility ("Board") to submit its recommendation as to the appropriate discipline to be imposed in this jurisdiction. On December 2, 1999, the Board issued its Report and Recommendation, which is attached hereto and made a part hereof. The Board recommended that Hitselberger be suspended for sixty days and then reinstated only upon a showing of fitness. Neither Bar Counsel nor Hitselberger has filed an exception to the Board's recommendation.

We are required to 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)(1). "The deferential standard mandated by this provision becomes even more deferential where, as here, the attorney [and Bar Counsel] ha[ve both] failed to contest the proposed sanction." In re Dietz, 675 A.2d 33, 34 (D.C. 1996) (quoting In re Goldsborough, 654 A.2d 1285, 1288 (D.C. 1995)). The sanction recommended by the Board is not inconsistent with sanctions that this court has imposed for similar disciplinary violations. See Dietz, 675 A.2d at 36; In re Aldridge, 624 A.2d 1210 (D.C. 1993). Thus, given the lack of any opposition and there appearing no reason not to accept the recommendation of the Board with the qualification set forth by Bar Counsel, it is

ORDERED that Mykel Hitselberger is suspended from the practice of law in the District of Columbia for a period of sixty days, said suspension to commence upon his filing of an appropriate affidavit in compliance with D.C. Bar R. XI, § 14. See In re Robertson, 618 A.2d 720, 726 (D.C. 1993) (citing D.C. Bar R. XI, § 16 (c)). *fn2 Furthermore, reinstatement of Mykel Hitselberger is conditioned upon proof of fitness to practice law in the District of Columbia.

So ordered.

APPENDIX

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

Respondent is a member of the Bar of the District of Columbia Court of Appeals (the "Court"), having been admitted on December 19, 1986. He also is admitted to practice before the Court of Appeals of Maryland (the "Maryland Court"). On December 2, 1998, the Maryland Court entered an order indefinitely suspending Respondent from the practice of law.

Bar Counsel reported the Maryland Court's order of suspension to the Court. On February 3, 1999, the Court entered an order suspending Respondent pursuant to D.C. App. R. XI, § 11(d) and directed the Board on Professional Responsibility (the "Board") to recommend whether reciprocal discipline should be imposed. In re Hitselberger, No. 99-BG-57. For the reasons set forth below, the Board recommends that a reciprocal 60-day suspension with fitness be imposed on Respondent.

The Maryland Misconduct

Two complaints were filed against Respondent in Maryland. In the first complaint, the Pyles matter, Respondent was found to have violated four disciplinary rules during his representation of Maryland Trooper First Class John Pyles, pursuant to a retainer with the Maryland Troopers Association. Specifically, Respondent was retained in October 1994 to fight an employment action filed by the Maryland State Police. Respondent filed a Motion to Dismiss the petition as time-barred under a one year statute of limitations rule. When the Court ruled against Pyles' motion on January 3, 1996, Respondent failed to notify his client of the ruling. On January 17, 1996, when Pyles learned of the Court's ruling, he sought an explanation from Respondent. They met on January24, 1996 and agreed Respondent would appeal the ruling. On March18, 1996, Pyles called about the appeal and Respondent told him the appeal had been filed. On checking with the Circuit Court the next day, Pyles learned the appeal had not been filed. He again called Respondent and asked for copies of the filing. When Pyles did not receive a response from Respondent, he enlisted the assistance of the union lodge president. Called before an April 1996 meeting of the Executive Board of the Maryland Troopers Association, Respondent again maintained that he had filed the appeal and added that he had written a check for the filing fee. The Executive Board demanded proof of the filing which Respondent ...


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