On Report and Recommendation of the Board on Professional Responsibility (BDN 55-02)
Argued September 30, 2008
Before WASHINGTON, Chief Judge, and FISHER and THOMPSON, Associate Judges.
In this disciplinary matter, Bar Counsel challenges the sanction recommended by the Board on Professional Responsibility ("the Board") for the ethical violations committed by Respondent, Bryan A. Chapman. The Board, resting on its Report and Recommendation, encourages us to adopt its recommended sanction for Chapman: A thirty (30) day suspension from the practice of law stayed in favor of a one (1) year period of probation within which time Chapman must complete Continuing Legal Education ("CLE") courses in employment discrimination law, federal court procedure, and professional responsibility. Bar Counsel asserts that the sanction recommended by the Hearing Committee ("the Committee") -- a sixty (60) day suspension, with thirty (30) days stayed in favor of a one (1) year period of probation -- is a more appropriate sanction given the aggravating factors in Chapman's case. For the following reasons, we adopt the Committee's recommended sanction.
Chapman pursued his work primarily as a sole practitioner. In August of 1999, Ms. Ann Bright retained him to represent her in an employment discrimination case against her employer. Due to Chapman's neglect of Ms. Bright's case, which resulted in her case being dismissed, Bar Counsel charged him on October 21, 2005, with violating three Rules of Professional Conduct ("the Rules"): Rule 1.1 (a) regarding competent representation; Rule 1.1 (b) regarding skill and care; and Rule 1.3 (a) regarding zeal and diligence.
On April 26, 2006, after considering the evidence presented by Bar Counsel and Chapman, the Committee found that he had violated all three Rules and recommended a sanction of a 60-day suspension with thirty days stayed in favor of one year probation. More importantly, for purposes of this case, the Committee found that Chapman was a "non-credible" witness.
On July 20, 2007, in its Report and Recommendation, the Board agreed with the Committee's findings of fact and conclusions of law, but disagreed with its recommended sanction. The Board recommended a thirty (30) day suspension from the practice of law stayed in favor of a one (1) year period of probation. Chapman did not take exception to the Board's Report and Recommendation, but Bar Counsel takes exception to the Board's recommended sanction. Bar Counsel argues that the Board did not properly consider the Committee's findings because the Board declined to conclude that Chapman was intentionally and deliberately misleading in his testimony despite the Committee's finding that he was a "non-credible" witness. According to Bar Counsel, a fair reading of the Committee's findings supports the harsher sanction recommended by the Committee because this court considers dishonesty before the disciplinary system to be a significant aggravating factor.
The Board exercises broad discretion in handing out discipline. See D.C. Bar R. XI, § 9 (g)(1); see also In re Godette, 919 A.2d 1157, 1164 (D.C. 2007); In re Cleaver-Bascombe, 892 A.2d 396, 402 (D.C. 2006). We must adopt the recommended sanction of the Board unless to do so would foster a tendency toward inconsistent sanctions for comparable conduct or would otherwise be unwarranted. See D.C. Bar R. XI, § 9 (g)(1); see also Godette, supra, 919 A.2d at 1164. "But although we must give considerable deference to the Board's recommendations in these matters, the responsibility for imposing sanctions rests with this court in the first instance." Godette, supra, 919 A.2d at 1164 (citations and internal quotations omitted). Hence, "the buck stops here." Id. (quoting In re Shillaire, 549 A.2d 336, 342 (D.C. 1988)).
In disciplinary proceedings, we determine the proper sanction by examining the "nature of the violation, aggravating and mitigating circumstances, the absence or presence of prior disciplinary sanctions, the moral fitness of the attorney, and the need to protect the legal profession, the courts, and the public." In re Steele, 888 A.2d 146, 153 (D.C. 2005) (citation omitted). In this case, however, the only issue in dispute before us is whether Chapman's dishonesty to Bar Counsel during its ...