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In re Murdter

Court of Appeals of Columbia District

February 4, 2016

IN RE CHARLES P. MURDTER, RESPONDENT

         Argued January 11, 2016

          A Member of the Bar of the District of Columbia Court of Appeals. (Bar Registration No. 375905).

         On Report and Recommendation of the Board on Professional Responsibility. (BDN-489-10).

         James T. Maloney for respondent.

         Elizabeth A. Herman, Deputy Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, for the Office of Disciplinary Counsel.

         Elizabeth J. Branda, Executive Attorney, filed a statement in lieu of brief for the Board on Professional Responsibility.

         Before EASTERLY and MCLEESE, Associate Judges, and FARRELL, Senior Judge.

          OPINION

Page 356

          Per Curiam

          Between September 2009 and November 2010 respondent failed to file briefs in five separate appeals in which this court had appointed him to represent convicted defendants under the Criminal Justice Act (CJA). He likewise failed to respond to numerous orders directed to him by the court in connection with the appeals.[1] In November 2010 his appointments were vacated, requiring the appointment of new counsel and attendant delay in each appeal.

         A Hearing Committee appointed by the Board on Professional Responsibility (the

Page 357

Board) found that in each matter respondent had committed seven violations of the District of Columbia Rules of Professional Conduct.[2] The Board, on review, agreed that clear and convincing evidence supported each charged violation, and has recommended that respondent be suspended from the practice of law in this jurisdiction for six months, with all but sixty days of the suspension stayed in favor of probation on specified conditions.

         Respondent's sole challenge before us is to the recommended sanction. Joined by Disciplinary Counsel, he argues that suspension is too severe in the circumstances and that public censure is the appropriate sanction, given the evidence of his remorse and rehabilitation and an otherwise unblemished legal career. The Board's report and recommendation, however, and the findings of the Hearing Committee it incorporates, satisfy us that the recommended suspension " falls within the wide range of acceptable outcomes" and that we should not reject the " strong presumption in favor of its imposition." In re Martin, 67 A.3d 1032, 1053 (D.C. 2013) (internal quotation marks omitted); see D.C. Bar R. XI, § 9 (h)(1). We adopt the Board's report, appended to this opinion, and take the occasion to explain briefly our disagreement with aspects of Disciplinary Counsel's argument for a lesser sanction.

         Disciplinary Counsel maintains that the Board and the Hearing Committee gave disproportionate weight to " the seriousness of [respondent's] conduct," Martin, 67 A.3d at 1053, while undervaluing other, mitigating factors. Specifically, Disciplinary Counsel emphasizes respondent's demonstrated cooperation with Disciplinary Counsel and commitment to change, further arguing that respondent's clients did not suffer actual prejudice because their convictions were eventually affirmed on appeal. But, as our opinion in In re Askew, 96 A.3d 52 (D.C. 2014) (per curiam), makes clear, respondent's disregard of client matters took on heightened significance in the context of his appointment to represent indigent appellants:

We weigh heavily the fact that Ms. Askew was appointed to represent [the appellant] under the Criminal Justice Act. . . . When a [CJA] panel attorney so egregiously fails to fulfill [her] obligation [to competently represent and zealously advocate for . . . clients], it undermines the aim of the [CJA], and reflects negatively on both this court and the legal profession.

Id. at 60. Respondent, it scarcely needs repeating, accepted and then largely ignored appointment in not one but five such appeals. And this indifference to his client obligations went hand-in-glove with disregarding multiple related orders of this court, conduct itself " seriously interfer[ing] with the administration of justice." D.C. R. Prof. Conduct 8.4 (d).

         Altogether, respondent's derelictions went beyond a " fail[ure] to make filings" (Brief for Disciplinary Counsel at 14) and, even accounting for the factors shown in mitigation, require discipline commensurate with this court's responsibility to " protect the public and the courts, maintain the integrity of the profession, and deter others from engaging in similar misconduct." In re Askew, 96 A.3d at 58. Disciplinary Counsel is legitimately concerned with not " punishing" attorneys who

Page 358

are genuinely remorseful and committed to remediation, but that concern cannot be at the expense of deterring a lawyer's gross indifference, as exemplified here, to duties owed both clients and the court.

         The Board's report and recommendation, by contrast, appropriately balances the competing considerations. While giving full weight to the evidence in mitigation credited by the Hearing Committee, the Board was convinced that a lesser sanction than actual suspension would minimize the seriousness of respondent's combined defaults. In its view, " if [r]espondent had not been genuinely remorseful, cooperated with [Disciplinary Counsel] and otherwise had a remarkable and commendable legal career," the multiple " instances of intentional neglect . . . might well have warranted a sanction harsher than" it was recommending. Even without the deference the ...


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