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In re Kitchings

August 30, 2001


Before Ruiz and Washington, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Ruiz, Associate Judge

On Exception of Respondent to Report and Recommendation of the Board on Professional Responsibility

Argued September 7, 2000

At the crux of this case lies a dispute between the Board on Professional Responsibility and Bar Counsel over the scope of the latter's authority to resolve cases based on a set of stipulated facts.

Bar Counsel charged John H. Kitchings with fifteen counts of various violations of the Rules of Professional Conduct, including neglect (Rule 1.3), failure to keep his clients informed (Rule 1.4), and failure to protect a client's interest after representation ended (Rule 1.16). Kitchings ultimately disputed none of these charges. *fn1 Instead, he signed two stipulations: the first admitted the substance of three counts, and the second admitted the remaining twelve.

Kitchings also signed a memorandum of understanding indicating that the "appropriate" sanction for the three violations of the first stipulation, "aggravat[ed]" by the twelve counts of the second stipulation, was a six-month suspension, with reinstatement conditioned upon a showing of fitness. The memorandum indicated that it did not bind the hearing committee, the Board, or this court, and that Bar Counsel retained the authority to prosecute any counts not considered by this court as a basis for discipline. The memorandum stated that Kitchings signed it "to avoid the burden and expense of defending against further charges that would arise from [his] conduct as set forth in the Second Stipulations."

In its Report, the Board rejected the second set of stipulations and the memorandum of understanding on three separate grounds. First, the Board found them to be a "plea bargain" or "negotiated disposition" beyond the authority of Bar Counsel. Second, Bar Counsel had no power, according to the Board, to urge the hearing committee to dismiss the charges of the second stipulation when contact members appointed by the Board had not given him permission to do so. Third, the Board found that Kitchings had signed the memorandum agreeing to a six-month suspension and the second stipulation under duress because of threats that Bar Counsel purportedly made to him. Instead, the Board recommended a thirty-day suspension, based solely on the violations admitted in the first stipulation, and directed Bar Counsel to continue to prosecute the other twelve charged violations.

We disagree with the Board's analysis. Although Bar Counsel in this case did not proceed in the usual manner, there was no unauthorized dismissal or plea bargain. Rather, the twelve counts of the second stipulation formed the basis for an enhanced sanction - a six-month suspension with a fitness requirement - in the nature of aggravating factors. We see nothing more than harmless error in the failure of Bar Counsel to obtain preapproval from contact members. Because nothing was dismissed, and the memorandum expressly provided that the Board was not bound by its terms, Bar Counsel did nothing more than try to anticipate - in this case incorrectly - the decision of the contact members. We also conclude that the Board erred in not deferring to the findings of the hearing committee with respect to duress. The presence of duress is a matter of fact, see Sind v. Pollin, 356 A.2d 653, 656 (D.C. 1976), and the Board must accept factual findings supported by substantial evidence, such as these. See In re Micheel, 610 A.2d 231, 234 (D.C. 1992). We thus remand this matter to the Board for a recommendation of a sanction consistent with all fifteen violations. See In re Drury, 683 A.2d 465, 468 (D.C. 1996) (holding that this court defers to the Board's recommended disposition "unless the sanction is unwarranted or inconsistent with sanctions for comparable conduct").


1. Alleged Misconduct

Kitchings, engaged in a solo personal injury practice between 1991 and 1997, accepted more cases than he could ethically maintain. At least some of his clients suffered from his overwork. In one instance, he failed to return his client's telephone calls. In another, he accepted a settlement check from an insurer but failed to pass that check to his client, or even inform the client that it had been received. In still another matter, he failed to forward files to successor counsel after being fired by his client. All fifteen counts involve this same pattern of neglect, failure to inform, and dereliction of other duties.

2. Procedural History

Bar Counsel, with the approval of a contact member, presented a three-count stipulation to a hearing committee on July 23, 1997. *fn2 On September 18, Bar Counsel presented a second set of stipulations outlining an additional twelve counts, as well as a memorandum of understanding. At the time the second stipulation was presented to the hearing committee, none of the twelve cases it described had been approved for prosecution by a contact member, contrary to the rules of the D.C. Bar. See D.C. Bar R. XI, § 8(b).

The memorandum of understanding, signed by Kitchings, stated that "the appropriate sanction" for all fifteen charges described in the first and second stipulations should be "a six-month suspension, with . . . reinstatement conditioned upon a showing of fitness." The memorandum indicated that this sanction would not bind the hearing committee, the Board or this court, and that Bar Counsel would remain free to prosecute any cases not considered by the court in aggravation, and to introduce these cases as evidence against Kitchings if he were ever to seek reinstatement. The last paragraph stated ...

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