The opinion of the court was delivered by: Kramer, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN 371-00)
Before GLICKMAN and KRAMER, Associate Judges, and PRYOR, Senior Judge.
The Board on Professional Responsibility ("Board") has recommended that the respondent, attorney Maryrose Nwadike, be sanctioned by informal admonition for violating D.C. Rule of Professional Conduct 1.1 (b), requiring an attorney to "serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters." District of Columbia Office of Bar Counsel ("Bar Counsel") has filed an exception to the Board's order, claiming that the proper sanction for this violation is a thirty-day suspension, rather than an informal admonition, and that an informal admonition would foster a tendency toward inconsistent dispositions for comparable conduct. Ms. Nwadike has filed no exception to the Board's order. We agree with the Board and adopt its recommended sanction.
The facts underlying this matter are essentially undisputed.*fn1 The matter arises from a medical malpractice case that was referred to Ms. Nwadike, a sole practitioner, in August 1995, from a law firm well-known for handling such matters. The claims involved had resulted from a botched intravenous infusion given at Children's Hospital that burned and left a scar on the arm of Magnus Dada, a newborn baby boy. The referring law firm had represented Magnus' parents, Anthony and Bisi Dada, in connection with this matter and had pursued claims for both Magnus and his mother, who was seeking wages lost as a result of Magnus' injuries. The firm had compiled information regarding the Dadas' claims, including medical records, opinions about Magnus' injury and the names of three potential expert witnesses, one of whom had estimated the cost of corrective surgery for Magnus at $1,100. The firm had begun settlement negotiations with Children's Hospital, and had received a $5,000 settlement offer along with an indication from the hospital's counsel that it would be willing to go as high as $10,000 in order to resolve the matter.
In the course of discussions, the referring attorney informed Ms. Nwadike about the Dadas' claims and the most recent settlement offer, suggesting that a settlement greater than $10,000 might be possible if a lawsuit was filed. In that connection, he told Ms. Nwadike that the statute of limitations would expire in November 1995. He also mentioned that the firm was referring the case to her because it was too small for the firm to handle and because it was thought that her Nigerian background would be of benefit in working with the Dadas, who were also from Nigeria.
Shortly after receiving the referral, Ms. Nwadike met with Mr. Dada to discuss the case and review the retainer agreement. Ms. Nwadike made clear that settlement was the best resolution, and that she might not be able to continue the representation if the matter went to trial. She also explained the imminent expiration of the statute of limitations, requiring the complaint to be filed within three months of their conversation. The retainer agreement Ms. Nwadike presented provided that the Dadas would pay all of the costs of litigation. Mr. Dada signed the retainer agreement, but since Mrs. Dada was to be a named party in the suit, Ms. Nwadike wanted her signature on the agreement as well. Mr. Dada, however, insisted that he "was in charge," and that his wife's signature was unnecessary. Ms. Nwadike was never able to obtain Mrs. Dada's signature on the agreement.
On November 9, 1995, to avoid missing the deadline for the expiration of the statute of limitations, Ms. Nwadike filed a complaint in the Superior Court, paying all the fees herself. Children's Hospital then served upon her interrogatories and medical release forms, which Ms. Nwadike mailed to the Dadas on December 12, 1995, after trying unsuccessfully to contact them.
Mrs. Dada immediately returned the medical release form, though not the responses to the interrogatories. Despite continued efforts, Ms. Nwadike was unable to contact the Dadas from December 1995 through early Spring 1996. As a result, she was unable to respond to the hospital's interrogatories. Sometime in the spring of 1996, she re-established contact with the Dadas and on May 3, 1996, obtained their responses to the interrogatories, though they were several months late.
In the meantime, despite her inability to contact the Dadas, Ms. Nwadike had continued working on the case and had been seeking to secure expert witnesses. The referring law firm had provided her with the names of three potential witnesses, including Dr. Poku-Dankwah ("Dr. Poku"), the Dadas' family physician and a potential expert witness. Ms. Nwadike called and met with Dr. Poku in early 1996, giving him the case file so that he could prepare his expert statement. At that meeting, after quickly reviewing the case, with which he was already somewhat familiar due to his regular treatment of Magnus Dada, Dr. Poku told Ms. Nwadike that it was his opinion that the standard of care had been breached by Children's Hospital. Thus, Ms. Nwadike believed that she had secured an expert witness and asked him to complete a statement concerning what the substance of his testimony would be if he was called as a witness at trial. Despite her urging over the next several months, Dr. Poku never completed the statement.
The trial court's scheduling order required that the plaintiff's Rule 26 (b)(4) statement, listing the potential experts to be called at trial and setting forth a summary of their expected testimony, be filed by May 23, 1996. Just prior to this due date, Ms. Nwadike had requested that the Dadas seek new counsel and they agreed to, but did not do so. After discovering that her clients had not secured new legal representation, Ms. Nwadike drafted and filed the requisite Rule 26 (b)(4) statement on June 27, 1996, over a month beyond the May 23, 1996 due date provided in the court's scheduling order. The Rule 26 (b)(4) statement listed Dr. Poku, as well as two other doctors that had been suggested by the referring law firm, as potential expert witnesses. The substance of their expected testimony, however, was not provided. Rather, Ms. Nwadike wrote: "Plaintiff has not yet decided on whom to call as expert witnesses, at this time. When she does, she will supplement this answer." Ms. Nwadike later testified that of the three people listed, she had only contacted Dr. Poku, whom she anticipated using at trial as her expert witness.
Sometime in June 1996, Ms. Nwadike learned of a complaint letter that the Dadas had sent to their insurance company regarding Dr. Poku.*fn2 She met with the Dadas and urged them not to pursue their complaint against Dr. Poku, since he was the expert in their lawsuit against Children's Hospital, and it would be difficult for the Dadas to find another doctor who was directly familiar with the facts, believed there had been a breach of the standard of care and was affordable. Mr. Dada, however, took the position that Dr. Poku was not a suitable expert for their case, and that they would be able to find a replacement. Nonetheless, at the end of the meeting, Ms. Nwadike believed that she had convinced the Dadas not to pursue their complaint against Dr. Poku.
Around this same time, Children's Hospital attempted to schedule depositions of the experts and plaintiffs in the case. The Dadas were deposed, but when the hospital attempted to get depositions of the experts listed in the plaintiffs' Rule 26 (b)(4) statement, it discovered that none was willing to testify on the Dadas' behalf. The hospital obtained affidavits to that effect from each of the three purported experts and used them as the basis of its motion for summary judgment, filed on August 23, 1996. ...