December 15, 2005
IN RE BILLY L. PONDS, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS (BAR REGISTRATION NO. 379883)
On Report and Recommendation of the Board on Professional Responsibility. (BDN 150-98).
The opinion of the court was delivered by: King, Senior Judge
Argued April 7, 2005
The Board on Professional Responsibility ("Board") determined that respondent, Billy L.Ponds, violated Maryland Rules of Professional Conduct*fn1 1.7 (b)*fn2 and 1.16 (a)(1).*fn3 It recommends a sixty-day suspension and "in view of the very lengthy [five-year] delay in the disposition of this case" that execution of the sixty-day suspension be stayed with a six-month period of unsupervised probation, with the requirement that Ponds complete a continuing legal education course on ethics or criminal practice covering conflicts of interest.*fn4
Respondent maintains that his conduct did not violate Maryland Rules of Professional Conduct 1.7 (b) or 1.16 (a)(1). Bar Counsel takes the opposite view and requests that we adopt the Board's findings of fact and conclusions of law with respect to the violations. Bar Counsel, however, takes issue with the recommended sanction and asks that we reject the Board's recommended stay of the suspension and instead order a sixty-day suspension to commence thirty days after the entry of our order. The Board, which has filed its own brief addressing only the sanction issue, asks that we impose the recommended sanction. Respondent did not address the issue relating to the sanction in his briefs nor did he request, in his filings before the Board, that any sanction imposed be mitigated because of the delay.
We accept the Board's findings of fact and conclude that respondent did indeed violate Maryland Rules of Professional Conduct 1.7 (b) and 1.16 (a)(1). We reject, however, the Board's sanction recommendation, as well as its decision to mitigate it due to the delay in the disposition of this case. Accordingly, we conclude that respondent shall be suspended from the practice of law for a period of thirty days and shall complete appropriate CLE in light of this opinion.
Respondent, who has been a member of the bar for approximately twenty years, was retained on February 8, 1997 to represent Gifford Thompson. Thompson had been charged, in the United States District Court in Maryland, with conspiracy to import cocaine and conspiracy to distribute and possess with the intent to distribute between 15 and 50 kilograms of cocaine.*fn5
On July 10, 1997, Thompson sought to enter a guilty plea to the charge of conspiracy to import cocaine. The judge conducted a thorough Rule 11 (b) inquiry and accepted Thompson's guilty plea. On approximately July 21, 1997, Thompson sent respondent a letter accusing respondent of coercing him into pleading guilty, but also requesting respondent's assistance with withdrawing the guilty plea.*fn6 On approximately August 13, 1997, the District Court received a letter from Thompson, with a copy of the letter he had sent to respondent attached, requesting a hearing on his request to withdraw the guilty plea.
The court forwarded Thompson's letter to government counsel and to respondent and asked respondent for his response. Respondent replied, in a letter dated September 10, 1997, "in light of the fact that I still represent Mr. Thompson, I believe that it would be inappropriate to respond at this time [to the allegations]." Although he did not meet with Thompson between the date he received Thompson's letter requesting withdrawal of the guilty plea and the September 26, 1997 sentencing date, respondent continued preparing for the client's sentencing hearing.*fn7
At the beginning of the sentencing hearing, the following exchange took place between the court and respondent:
COURT: Mr. Ponds, are you arguing . . . [the motion to withdraw the plea] yourself on his behalf or how are you going to proceed with that?
MR. PONDS: No, Your Honor. I think it would be inappropriate for me to argue the motion since there's things in his motion that . . . .
COURT: All right. Well, Mr. Thompson, I will let you further address me.
The court then asked Thompson why it should allow him to withdraw his plea. Thompson replied that respondent had told him about the plea offer only fifteen or twenty minutes before he pled guilty and that respondent had advised him that if he did not take that offer, he was going "to get life" imprisonment. He then stated that respondent had intimidated him and lied to him and that he did not trust respondent. After hearing from Thompson, the court denied Thompson's request to withdraw his guilty plea, observing:
But I don't think, Mr. Thompson, that you have established your burden to withdraw your guilty plea. I can't withdraw a guilty plea when I went through a half hour questioning with you and you satisfied me on the record that you made a knowing and voluntary plea, and there is absolutely no way under the law that I can withdraw your guilty plea. I can't do it and won't do it. And I am going to deny your pro se motion that you have filed.
The court then proceeded with the sentencing hearing.
At the sentencing portion of the hearing, respondent made representations on behalf of Thompson, and Thompson also spoke on his own behalf.*fn8 In his allocution, Thompson refused to accept responsibility for his crime, effectively ensuring that his offense would be considered at level 38. The court then found Thompson's offense level to be 38 and sentenced him, at the lowest end of the guideline range, to 292 months.
At the conclusion of the hearing, the court advised that Thompson had 10 days to note his appeal, but no notice of appeal was filed within that time frame.*fn9 On November 4, 1997, Thompson wrote a letter to the United States Court of Appeals for the Fourth Circuit advising them that he wanted to appeal his case but that he did not have counsel to help him do so. The Court of Appeals treated the letter as a Notice of Appeal.
Although Thompson's letter to the Fourth Circuit also contained accusations that respondent had coerced Thompson into accepting a plea, the Court of Appeals appointed respondent, on December 4, 1997, to represent Thompson in his appeal. On December 24, 1997, the Court of Appeals sent a letter to respondent advising him of his failure to file a docketing statement, transcript purchase order and counsel of record form. On December 31, 1997, respondent filed a motion for enlargement of time to file the docketing statement and subsequently filed it with the court. On January 5, 1998, Thompson sent another letter to the court requesting the appointment of new counsel. Respondent filed a response on January 20, 1998 stating that he had no objection to the request. Thompson was appointed new counsel on February 19, 1998.*fn10
Respondent testified before the hearing committee and the committee credited his testimony that: (1) Thompson's claim that respondent coerced him into pleading guilty was baseless; (2) respondent did not interpret Thompson's July 21, 1997 letter as a discharge; (3) respondent believed that Thompson's pursuit of a motion to withdraw the guilty plea could have subjected Thompson to additional charges of perjury and or interference with the administration of justice which could have resulted in an even longer sentence; and (4) respondent decided not to take a position with regard to Thompson's motion to withdraw his plea in order to avoid being called as a witness against his client and to avoid facilitating his client's perjury.
The Board agreed with the hearing committee that Thompson's letter dated July 21, 1997 did not indicate an intent to terminate the representation with sufficient clarity to support a violation of Maryland Rule of Professional Conduct 1.16 (a)(3) (failure to withdraw when discharged). The Board did conclude, however, that respondent violated Maryland Rule of Professional Conduct 1.7 (b) (conflict of interest). The Board noted that an attorney cannot "jump in and out of a representation as it suits that attorney's needs or purposes" and that, because respondent had not withdrawn from representing Thompson, he was still Thompson's attorney and was therefore "operating under an actual conflict of interest during the hearing on the plea withdrawal as his client . . . had accused him, in so many words, of coercion and ineffective assistance which made his guilty plea involuntary." Having found that respondent had a conflict of interest, the Board then concluded that respondent also violated rule Maryland Rule of Professional Conduct 1.16 (a)(1) (lawyer shall withdraw from representation of a client if the representation will result in a violation of the Rules of Professional Conduct) because "it is clear that lawyers must withdraw where their client's interests are in conflict with their own professional or personal interests."
Respondent maintains that the Board erred in concluding that his conduct violated Maryland Rules of Professional Conduct 1.7 (b) and 1.16 (a)(1).*fn11 The thrust of respondent's argument is that he did not have a conflict of interest with his client and therefore was not required to withdraw from the representation. He claims there was no conflict because "he had no interests of his own to advance by staying in the case after Thompson indicated that he wished to withdraw his guilty plea." Alternatively, respondent contends that even if he did have a conflict, the court "implicitly ordered Respondent to remain in the case." Thus, even though there were grounds for withdrawal, under Maryland Rule of Professional Conduct 1.16 (c), respondent had to continue to represent Thompson.*fn12 We disagree on both points.
Maryland Rule of Professional Conduct 1.7 (b) provides, in relevant part, that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third party, or by the lawyer's own interests. We agree with the Board that, in these circumstances, respondent's representation of Thompson was materially limited by his own interests. Because Thompson alleged coercion and ineffective assistance of counsel as grounds for his motion to withdraw his guilty plea, respondent could not argue the motion to withdraw without possibly admitting serious ethical violations and subjecting himself to possible liability for malpractice. As a result, due to the conflict, Thompson was unrepresented by counsel on the issue relating to the request to withdraw the guilty plea.
Having concluded that respondent's representation of Thompson was materially limited by his personal interests, we further conclude that respondent was obligated to withdraw as counsel under Maryland Rule of Professional Conduct 1.16 (a)(1),*fn13 and failed to do so. Maryland Rule of Professional Conduct 1.16 (a)(1) provides, in relevant part, that a lawyer shall withdraw from representation if the representation will result in a violation of the rules of professional conduct. In this case, since respondent had a conflict of interest, in violation of Maryland Rule of Professional Conduct 1.7 (b), it was mandatory that he withdraw under Maryland Rule of Professional Conduct 1.16 (a)(1).*fn14
Finally, respondent maintains that "[t]he Court's actions by first allowing Mr. Thompson to proceed pro se without appointing new counsel in a separate motions hearing and allowing respondent to represent Mr. Thompson at sentencing . . . [suggests] that the Court had implicitly ordered or sanctioned respondent's continued representation of Mr. Thompson . . . ." We agree with the Board that respondent cannot shift the responsibility for withdrawal in this case to the court. The Rules of Professional Responsibility impose the responsibility to determine whether a conflict exists and to act accordingly on the attorney.*fn15 That responsibility requires, at a minimum, that in a court proceeding the attorney unequivocally inform the court and client of the conflict and the duty to withdraw imposed by the ethical rules. Only if, after such disclosure, the court were to expressly order the attorney to continue representation might the attorney arguably be excused from the obligation to withdraw.
Having determined that respondent violated Maryland Rules of Professional Conduct 1.7 (b) and 1.16 (a)(1), we now turn to the Board's recommendation that we stay the suspension in this case "in view of the very lengthy [five-year] delay in the disposition of this case"*fn16 and that execution of the sixty-day suspension*fn17 be stayed with a six-month period of unsupervised probation, and with the added requirement that respondent complete a continuing legal education course. The Board noted, "[w]e are, of course, mindful of the Court's rule that circumstances must be 'unique and compelling' for delay to become a mitigating factor."*fn18 It then concluded, however, that "the five-year delay in this case rises to that level" finding that "[a] delay of this length places this case in an exceptional category, at the outermost bounds of known delays within the disciplinary system, and we believe that the Fowler rule allows for mitigation in these circumstances."*fn19 After considering the relevant case law, we conclude that the circumstances here were not sufficiently unique and compelling as to warrant reducing the sixty-day suspension to what is, in effect, no suspension at all.
A. Case Law
The first case in which we approved the use of delay as a mitigating factor was In re Williams, 513 A.2d 793 (D.C. 1986) (Williams II). Bar Counsel brought disciplinary charges against Williams in 1979 and 1980. Id. at 794. Three years later, we remanded the case back to the Board because we concluded Williams had not been afforded adequate due process protections. In re Williams, 464 A.2d 115 (D.C. 1983) (Williams I).
Eighteen months later, Bar Counsel refiled identical allegations of misconduct against Williams. Williams II, 513 A.2d at 794-95. Williams, in turn, argued that the eighteen-month delay warranted dismissal of the charges for lack of a speedy hearing. The Board accepted Williams' argument and dismissed the disciplinary proceedings. Id. at 795.
In considering the application of the requirement of a speedy trial to attorney discipline cases, we determined that "[s]peedy trial principles, which in criminal cases are a constitutionally required curb on the abuse of government power, in the disciplinary system take second place to other societal interests."*fn20 Id. at 796. We concluded that "[a]ny betrayal of the trust which the attorney is sworn to keep demands appropriate discipline[,] a delay in prosecution, without more, cannot override this necessity [,]. . . [and that] an undue delay*fn21 in prosecution is not in itself a proper ground for dismissal of charges of attorney misconduct."*fn22 Id. (emphasis added).
The issue of delay arose again in In re Hessler, 549 A.2d 700 (D.C. 1988) where the Board considered delay as a mitigating factor in recommending "a sanction nearer the lesser end of the permissible range for the type of misconduct involved."*fn23 Id. at 716. The Board, after taking several mitigating factors into account, including an approximately two-year delay in the disciplinary process, recommended a one-year suspension.*fn24 Id. at 716-17. We concluded, "under all the circumstances of this case and in particular the numerous mitigating factors, the purposes of bar disciplinary determinations will be sufficiently served by a suspension of six months."*fn25 Id. at 703.
After Hessler, we again confronted the issue of delay in In re Schneider, 553 A.2d 206 (D.C. 1989). There, the Board recommended a six-month suspension because Schneider violated Rule 1-102 (A)(4) (dishonesty)by altering receipts in an effort to obtain reimbursement from his firm for his business expenditures.*fn26 Id. at 207. Because there were "a number of significant mitigating factors" including the fact that the "disciplinary process ha[d] dragged on into its sixth year," we concluded that a thirty-day suspension would better serve "the considerations that shape Bar disciplinary determinations . . . ."*fn27 Id. at 212.
On the same day this court decided Schneider, we also decided In re Miller, 553 A.2d 201 (D.C. 1989), another case involving delay as a mitigating factor. Miller was also charged with violating Rule 1-102 (A)(4) (dishonesty). Id. The Board recommended a one-year suspension. Id. at 203. We concluded that the appropriate sanction was a thirty-day suspension noting that "we think the delay . . . in this case [six years] warrants a less severe sanction than that recommended."*fn28 Id. at 206.
The next case in which we considered delay as a mitigating factor was In re Fowler, supra note 18, 642 A.2d at 1327.*fn29 The Board recommended that Fowler be suspended for thirty days and that execution of the sanction be suspended due to the delay.*fn30 Id. at 1328. In imposing the thirtyday suspension, without a stay, we noted that
[w]hile we do not venture to opine under what circumstances time delay may properly mitigate an otherwise appropriate sanction, we do express the view that the circumstances of the individual case must be sufficiently unique and compelling to justify lessening what would otherwise be the sanction necessary to protect the public interest.
Id. at 1331 (emphasis added). We also noted that "[w]hatever may be the unique and compelling circumstances sufficient to mitigate an otherwise appropriate disciplinary sanction necessary to protect the public interest, none such exist here." Id.
In In re Starnes, 829 A.2d 488 (D.C. 2003), we again considered the use of delay as a mitigating factor. The Board recommended that "although a nine-month suspension has been imposed in somewhat similar cases, we conclude that six months is sufficient to protect the public in this case, in light of Respondent's repentant attitude and the significant delay in the preparation of the Hearing Committee's report in this case."*fn31 Id. at 490 n.3. Starnes argued for a further reduction of the suspension, but "we [were not] persuaded that the delay in concluding his disciplinary proceeding [had] prejudiced Starnes materially or justifie[d] a reduction of his sanction beyond the consideration that the Board's recommendation already show[ed]." Id. at 490.
We also considered delay as a mitigating factor in In re Brown, 851 A.2d 1278 (D.C. 2004). The Board recommended that Brown be suspended for one year with a fitness requirement for reinstatement. Id. at 1279. The Board noted:
under ordinary circumstances, it would have recommended a three year suspension. However, given the length of time that the case was pending, through no fault of Brown, and Brown's interim suspension pending final determination, . . . [it] recommended this case as an appropriate one for lessening of sanction.
Id. at 1280 (citation omitted). Neither Brown nor Bar Counsel filed objections or exceptions to the Board's report.*fn32 Id. at 1279. We concluded that the recommendation of the Board should be adopted. Id.
Finally, most recently in In re Thyden, 877 A.2d 129 (D.C. 2005), we considered Thyden's claim that the delay in resolving his disciplinary matter warranted dismissal of all charges, or, alternatively, no suspension of his license to practice. We held that Thyden should be suspended for thirty days as recommended by the Board because no prejudice resulted, since he was able to practice law while the matter was being litigated and he did not demonstrate "any meritorious argument challenging the substance of the proceedings." Id. at 140, 145.
In sum, we have permitted mitigation of a sanction, in part, because of delay in five cases (Hessler, Schneider, Miller, Starnes, and Brown). In each case the attorney was suspended, and in each case the length of the suspension was reduced to a shorter period of time. In no case have we essentially eliminated a suspension because of delay.
By reducing a sixty-day suspension to what is, in effect, no suspension at all, the Board has essentially wiped out the sanction entirely. In Fowler, we made clear that "the circumstances of the individual case must be sufficiently unique and compelling to justify lessening what would otherwise be the sanction necessary to protect the public interest." 642 A.2d at 1331. We conclude that the Board erred in considering the circumstances in this case to be sufficiently unique and compelling to warrant the effective elimination of the sanction. The very fact that respondent never raised the issue of delay at any point in this proceeding demonstrates that there is nothing particularly unique and compelling about the delay in this case. Furthermore, respondent does not assert that he suffered any prejudice as a result of the delay.*fn33 As was the case in Fowler, "[w]hatever may be the unique and compelling circumstances sufficient to mitigate an otherwise appropriate disciplinary sanction necessary to protect the public interest, none such exists here." Id.
In all of the cases where we have reduced a sanction because of delay, there were additional mitigating factors which warranted the reduction. In the case before us, there are no additional legitimate mitigating factors.*fn34 As the Board itself said in its report, "[i]n the final analysis, we find nothing unusually persuasive or compelling in the . . . mitigating factors adduced by the parties." In light of the fact that there are no additional mitigating factors, the Board should not have reduced the recommended suspension in this case to the extent it did. Furthermore, as we noted above, in the cases where we have agreed with the Board that the circumstances of the delay were sufficiently unique and compelling to warrant a reduction in sanction, the sanction (in every case a suspension) was always reduced to a shorter period of time, not reduced to where it is effectively no suspension at all, as the Board recommends here.*fn35
In sum, considering the absence of any asserted prejudice and the lack of any other mitigating factors, we conclude the circumstances here were not sufficiently unique and compelling to justify the reduction of the suspension from sixty days to essentially no suspension at all. As we noted in Williams II, supra, "[a]ny betrayal of the trust which the attorney is sworn to keep demands appropriate discipline . . . [and] a delay in prosecution, . . . cannot override this necessity." 513 A.2d at 796.
Having concluded that delay alone does not warrant a stay of the entire suspension, we now consider whether the Board's recommended sixty-day sanction is appropriate in these circumstances.*fn36 We conclude, based on our review of the relevant case law and the conduct at issue in this case, that a shorter period of suspension is warranted after considering the effect of the delay and respondent's recent public censure.*fn37
In deciding on a sixty-day sanction, the Board noted that the conduct in this case was similar, in terms of seriousness, to the conduct in In re McLain, 671 A.2d 951 (D.C. 1996), and In re Butterfield, 851 A.2d 513 (D.C. 2004). In McLain, we ordered a ninety-day suspension for a violation of the predecessor to Rule 1.8 (a) (conflict of interest to enter into a business transaction with a client).*fn38 671 A.2d at 954. In Butterfield, supra, 851 A.2d at 514, we ordered a thirty-day suspension for a violation of Rule 1.7 (b)(1) (cannot represent two clients, with adverse interests, in the same matter) and (b)(2) (cannot represent a client if representation will be adversely affected by representation of other client).*fn39 In respondent's case, the Board concluded that, "[l]ike McLain, the Respondent here failed to bring a conflict of interest and the need for disinterested legal advice promptly and adequately to the attention of his client. Like Butterfield, the Respondent persisted in a representation that was too fraught with conflict to continue." The Board then concluded, "the present case is comparable in terms of seriousness to McLain and Butterfield and hence amenable to a suspension of 60 days in ordinary circumstances."*fn40
We will "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). In re Jones-Terrell, 712 A.2d 496 (D.C. 1998), is the only other conflict of interest case in which a sixty-day suspension was imposed. In our view, the conduct in this case is not comparable to the egregious conduct of the attorney in that case, and therefore a sixty-day suspension is excessive and would lead to inconsistent dispositions.
In In re Jones-Terrell, the lawyer represented the Longs, who were the beneficiaries of the final survivor of Mr. and Mrs. Wallace.*fn41 When Mr. Wallace died, Mrs. Wallace's attorney decided to sell the home in order to cover the cost of Mrs. Wallace's care. Id. Jones-Terrell proposed to Mrs. Wallace's attorney that she and her husband would take care of Mrs. Wallace in exchange for living in her home rent free. When the attorney rejected the offer, Jones-Terrell met with Mrs. Wallace, without her attorney present, and obtained Mrs. Wallace's signature on the agreement.*fn42
Subsequently, Jones-Terrell sent a letter to Mrs. Wallace's attorney, signed by Mrs. Wallace, terminating his services and informing him that she would be representing Mrs. Wallace. Id. Around the same time, Jones-Terrell also filed a petition for guardianship in Superior Court in which she lied and said that Mrs. Wallace's durable power of attorney nominated her to be Mrs. Wallace's guardian and conservator. Id. In addition, Jones-Terrell mentioned nothing in the petition about her relationship to the Longs -- the heirs to the estate. Id. The Superior Court denied Jones-Terrell's petition, and appointed a different guardian ad litem for Mrs. Wallace.*fn43 Id.
We agreed with the Board's recommended sixty-day suspension. Id. at 500. Jones-Terrell was found to have violated several ethical rules including those involving conflict of interest, contacting a represented party, fraud and dishonesty. Id. at 499. We noted that (1) Jones-Terrell had engaged in a clear conflict and had essentially lied to the guardian about disclosing the conflict and obtaining a waiver; (2) several of Jones-Terrell's representations in her petition for appointment as guardian were false; (3) and her efforts to convince an incapacitated woman to sign documents and make out checks was deplorable. See id. at 500-01. We also observed that the rules were designed to protect the very people who were victims of Jones-Terrell's underhandedness -- Mrs. Wallace (incapacitated), Mrs. Wallace's attorney, and the trial court. Id. at 501.
Clearly the conduct in In re Jones-Terrell was far more egregious than that at issue in this case. The respondent in Jones-Terrell violated several of our rules of professional conduct, including Rule 8.4 (dishonesty), all in an effort to profit from and defraud an elderly incapacitated client. There is no showing of dishonesty in this case or any fraud. As the Board in this case noted, "In re Jones-Terrell . . . involved egregious overreaching by a lawyer with respect to her elderly and incapacitated client. We do not view the conduct here as comparable to that established in Jones-Terrell." Furthermore, we note that the conflict here was simply not as clear-cut and obvious as was the case in Butterfield, McLain, and Jones-Terrell. As the Board noted:
[t]here are some conflicting considerations as regards the seriousness of the misconduct in this case. On the one hand, we have difficulty finding that the Respondent's violation resulted from more than one error of judgment regarding the permissibility of 'carving out' the conflicted aspect of the representation while preserving the broader attorney-client relationship, as opposed to a willful and knowing violation of the Rules.*fn44
Based on the foregoing, we conclude that a sixty-day suspension is excessive. Taking into account Ponds subsequent public censure, and the excessive delay, we conclude that a suspension for thirty days, together with the requirement that Ponds undergo ethical training, is the most appropriate sanction in these circumstances. Our order follows:
1. Respondent Billy L. Ponds is hereby suspended from the practice of law in the District of Columbia for the period of thirty days. Respondent's attention is directed to the requirements of D.C. Bar R. XI, § 14, and their effect on his eligibility for reinstatement, see D.C. Bar R. XI, § 16(c).
2. As a condition of his reinstatement and before he resumes the practice of law following his period of suspension, respondent shall file with the Board of Professional Responsibility and Bar Counsel a certification that he has completed a continuing legal education course on legal ethics or criminal practice covering conflicts of interest.