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In re Francis

Court of Appeals of Columbia District

April 28, 2016

In re Ernest P. Francis, Esquire, Respondent.

Argued January 20, 2016

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 439894)

On Report and Recommendation of the Board on Professional Responsibility (BDN-89-13)

Ernest P. Francis, pro se.

H. Clay Smith, III, Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, and Jelani C. Lowery, Senior Staff Attorney, for the Office of Disciplinary Counsel.

Before Blackburne-Rigsby and McLeese, Associate Judges, and King, Senior Judge.

Per Curiam

Respondent, Ernest P. Francis, a member of the District of Columbia Bar since 1993, appeals the Board on Professional Responsibility's ("the Board") recommendation that, due to Francis' violations of several rules of professional conduct in connection with his representation of Ms. Cenny Norris in

the United States District Court for the District of Columbia, he should be sanctioned by a thirty day suspension, stayed in favor of six months of probation. Francis argues that: 1) in contravention of due process, he was not afforded adequate notice as to the conduct that constituted violations of the rules, 2) the Board erred in finding a violation of the rules on diligence and zeal, 3) the Board erred in finding a violation of the rules with respect to communication with his client, and 4) the Board's recommended sanction is improper. We disagree, and adopt the Board's recommendation.

I. Facts

Bar Counsel charged Francis with several violations of the District of Columbia Rules of Professional Conduct ("the Rules") stemming from his representation of Norris in a civil suit in the United States District Court for the District of Columbia in 2009. Francis was charged with intentionally failing to seek the lawful objectives of his client, [1] intentionally prejudicing or damaging his client during the course of representation, [2] failing to keep his client reasonably informed, [3] and failing to explain matters to the extent necessary to permit his client to make informed decisions.[4]

Norris entered into a retainer agreement with Clifford Stewart, an attorney licensed in New Jersey, and Stewart hired Francis to act as local counsel, although there is no written agreement between Francis and Stewart. The agreement provided that Francis would act as local counsel, while Stewart would conduct the substantive work and communication with Norris. In connection with the representation of Norris, Francis understood his role to be limited to reviewing the briefs for compliance with Rule 11 of the Federal Rules of Civil Procedure, and the District Court's local rules prior to filing. Francis, as sole counsel of record in the District Court's electronic filing system, received notice of the filings in Norris' case, and he was responsible for forwarding those filings or orders to Stewart, who was not counsel of record, and did not receive notice otherwise.

On December 13, 2010, the defendant in Norris' civil action filed a renewed motion to dismiss. Francis did not forward a copy of that motion to Stewart; however, he contacted Stewart via email approximately one month later on January 12, 2011 to discuss the impending deadline for filing an opposition. Stewart responded that he did not have a copy of the motion to dismiss and that he would need thirty days to respond. On January 14, 2011, Francis filed a motion for extension of time to file the opposition, requesting February 14, 2011 as the new deadline, which the court granted. It was not until January 21, 2011 that Francis provided Stewart with a copy of the motion to dismiss. On February 10, 2011, Stewart asked Francis via email to file another motion for extension of time. Although Francis responded to that email asking Stewart to explain the grounds for the extension request, he did not file a motion for an extension of time prior to the February 14, 2011 deadline. Moreover, Francis still did not file a motion for extension of time to file the opposition even after Stewart forwarded to Francis the grounds to do so on February 26, 2011. On March 31, 2011, Stewart provided a draft opposition to Francis but Francis did not find the opposition suitable for filing due to a problem with citations to the record. Stewart sent Francis a revised opposition on April 11, 2011 but, says Francis, the revised opposition was lacking some exhibits and Francis did not file it. On April 13, 2011, the District Court, treating the motion as conceded because it was never opposed, entered an order dismissing the case. Ten days after the case was dismissed, Francis notified Stewart of the dismissal. Stewart expressed that he was "nonplussed" by the revelation in the court's order that his opposition had never been filed.

On October 3, 2013, Bar Counsel filed a specification of charges arising from Francis' inaction in Norris' case. Following a hearing, the Hearing Committee found that Francis had indeed committed the offenses charged by Bar Counsel, and as sanction, recommended a Board reprimand. On March 17, 2015, after briefing and argument, the Board of Professional Responsibility issued its Report and Recommendations, adopting the Hearing Committee's findings of fact and conclusions of law but recommending, instead of a reprimand, a thirty-day suspension from the practice of law which was to be stayed ...


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