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In re Speights

Court of Appeals of The District of Columbia

November 22, 2017

In re Nathaniel H. Speights, Respondent.

          Argued September 14, 2017

         A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 952036)

         On Report and Recommendation Of the Board on Professional Responsibility (BDN-48-10) (Board Docket No. 12-BG-017)

          David A. Carr for respondent.

          Hamilton P. Fox, III, Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel at the time the brief was filed, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.

          Before Glickman, Easterly, and McLeese, Associate Judges.

          PER CURIAM

         Respondent Nathaniel H. Speights takes exception to the appended report and recommendation of the Board on Professional Responsibility. The Board adopts the findings and conclusions of its Ad Hoc Hearing Committee that respondent mishandled and neglected a personal injury action he filed in the United States District Court in the Middle District of Pennsylvania on behalf of a client who sustained severe injuries in a downhill skiing race accident. Agreeing with the Hearing Committee's determination that respondent's errors and omissions clearly and convincingly demonstrate his violation of D.C. Rules of Professional Conduct 1.1 (a) (failure to provide competent representation), 1.1 (b) (failure to serve a client with skill and care commensurate with that generally afforded by other lawyers in similar matters), 1.3 (a) (failure to represent his client zealously and diligently), and 1.3 (c) (failure to act with reasonable promptness in representing his client), the Board recommends that respondent be suspended from the practice of law in the District of Columbia for six months.

         In considering respondent's objections to the report before us, we review de novo the Board's legal conclusions and other legal questions, [1] but we defer to the factual findings of the Hearing Committee and the Board "unless they are unsupported by substantial evidence" in the record, and we "shall adopt" the Board's recommended disposition "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted."[2] For the reasons that follow, we conclude that respondent's exceptions lack merit and impose the sanction that the Board recommends.

         First, although respondent contends that his rule violations were not established by the requisite clear and convincing evidence, [3] Disciplinary Counsel in fact presented overwhelming proof of respondent's neglectful and incompetent representation of his personal injury client throughout the course of his multi-year engagement. Respondent's errors and omissions, as found by the Hearing Committee and detailed in its report appended to this opinion, included (but were not limited to) suing the wrong defendants; failing to amend the complaint to name the proper defendants after they became known to him; failing to conduct discovery or to investigate the accident; failing to prepare his client for his deposition; failing to take steps to preserve evidence; failing to request an extension of time to produce an essential expert's report; and repeatedly violating local court rules, required pretrial procedures, and court orders. As the Committee report also notes, the federal courts contemporaneously castigated respondent for neglecting the case and violating court orders and rules. Respondent's conduct exposed his client as well as himself to the threat of sanctions and ultimately led the district court to enter judgment for the defendants. Moreover, the Hearing Committee found respondent's explanations for his actions unworthy of credence. We are satisfied that the Committee readily could find that Disciplinary Counsel established respondent's Rule violations by clear and convincing evidence.[4]

         Respondent's second objection focuses on the Board's statement in its report that it "concurs with the Hearing Committee's factual findings as supported by substantial evidence in the record." He argues that the Board, like the Hearing Committee, was required to find his Rule violations to have been proved by clear and convincing evidence. This is not correct, however. "Clear and convincing evidence" is the standard of proof for the finder of fact to employ in a disciplinary proceeding; but as Board Rule 13.7 states, "[w]hen reviewing the findings of a Hearing Committee, the Board shall employ [the] 'substantial evidence on the record as a whole' test." Rule 13.7 requires the Board to employ the "clear and convincing evidence" standard itself only when the Board makes findings of its own - which it did not do in this case.[5]

         Lastly, respondent claims the Board disregarded its procedures and violated Board Rule 7.16 (a) by failing to consider motions he filed to dismiss the charges and to strike expert witness testimony. The record does not support this claim. Rule 7.16 (a) required the Board to "rule on" respondent's motions "in its disposition in the case" after receiving the Hearing Committee's "proposed disposition" of the motions "and the reasons therefor." D.C. Bar Rule XI, § 9 (c) allowed the Board to "adopt" the Hearing Committee's recommendation as its disposition. In its report to this court, that is how the Board complied with Rule 7.16 (a) - after acknowledging that respondent's motions were before it, the Board ruled on (and denied) them by expressly adopting ("incorporat[ing] by reference") the Hearing Committee's entire report and recommendation.

         Furthermore, respondent fails to persuade us that either motion had merit. In his motion to dismiss the disciplinary charges against him, respondent argued that he could not be held liable to his client in a malpractice action for mishandling his personal injury lawsuit because his client had no cause of action on which he could have prevailed in that suit[6] and therefore had "los[t] nothing" as the result of respondent's negligence.[7] The patent flaw in this argument is that a disciplinary proceeding is not a malpractice action. In a malpractice action, a plaintiff must prove his damages in order to recover them. But the goals of a disciplinary proceeding are different. We have recognized that "[w]hen viewed from the perspective of the disciplinary system's responsibility to protect the public from unworthy attorneys, to maintain the integrity of the profession, and to deter shoddy practice, it is clear that whether the client happens to be prejudiced or not should not determine the outcome of disciplinary cases involving neglect."[8] Although prejudice to the client is an element of some disciplinary violations, [9] it is not an element of the violations of D.C. Rules of Professional Conduct 1.1 and 1.3 (a) and (c) with which respondent was charged.[10] Thus, the putative lack of injury to his client from respondent's mishandling of his lawsuit did not operate to "absolve respondent of his professional obligations"[11] or immunize him from disciplinary sanction for his neglect of them.

         Respondent's motion to strike expert testimony also was faulty. In the proceedings before the Hearing Committee, each side presented expert opinion testimony directed to whether respondent's representation met the standard of care expected of lawyers in personal injury cases. Disciplinary Counsel's expert was Peter Grenier. In a post-hearing motion, respondent moved to strike Mr. Grenier's report and testimony on two grounds: first, that his testimony was unsworn, and second, that it was inadmissible under the rules of evidence because it "was merely his own personal opinion as to what should have been done and was not based upon an established standard of care."

         For the following reasons, neither of these grounds has merit. First, the hearing transcript states that Mr. Grenier testified "after having been first duly sworn by the Chairman" of the Hearing Committee. Respondent has proffered nothing to contradict this, nor did he object contemporaneously that Mr. Grenier was not under oath. Second, respondent waived or forfeited his substantive objections to Mr. Grenier's opinion testimony by (1) not objecting to the inclusion of Mr. Grenier's report in Disciplinary Counsel's hearing exhibits, (2) agreeing at the outset of the hearing that Mr. Grenier was qualified to give opinions on the standard of care for lawyers in personal injury cases, and then (3) neither objecting to Mr. Grenier's expert opinion testimony on the grounds advanced in his motion to strike nor cross-examining Mr. Grenier on the basis for his opinions.

         Third, in point of fact, as Mr. Grenier repeatedly made clear, he was not merely offering personal opinions but rather was applying his knowledge of the standard of care (e.g., "my answers are limited, if you will, to my experience and knowledge on the standards of care for a personal injury case") gained from his extensive experience practicing and teaching in the field of personal injury law in the District of Columbia and throughout the country (which was described in detail in his report). Fourth, even if that had not been so, Mr. Grenier's testimony was admissible in this proceeding under the Rules of the Board regardless of the rules of evidence applicable in other proceedings. Board Rule 11.3 says "[e]vidence that is relevant, not privileged, and not merely cumulative shall be received" (emphasis added) and leaves it to the Hearing Committee to determine what "weight and significance" to give it. The Rule further provides that "[t]he Hearing Committee may be guided by, but shall not be bound by[, ] the provisions or rules of court practice, procedure, pleading, or evidence, except as outlined in these rules or the Rules Governing the Bar." (Emphasis added.) It was within the ambit of the Hearing Committee's discretion to find Mr. Grenier's testimony relevant to its evaluation of respondent's performance and hence admissible under Rule 11.3. For all these reasons, we conclude that the Board and Hearing Committee did not err in denying respondent's motion to strike Mr. Grenier's testimony.

         Having addressed respondent's exceptions to the Board's report, we turn to the question of an appropriate sanction for respondent's professional misconduct. "The imposition of sanction in bar discipline cases is not an exact science and may depend on the facts and circumstances of each particular proceeding."[12] D.C. Bar Rule XI, § 9 (h) "endorses the Board's exercise of a broad discretion" in selecting the sanction to be imposed, [13] and we owe respect for the Board's considered judgment in the matter. Its recommendation therefore comes to us with "a strong presumption in favor of its imposition."[14] "Generally speaking, if the Board's recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed."[15] We are "especially deferential" to the Board's recommendation where, as here, neither the respondent nor Disciplinary Counsel takes issue with its appropriateness.[16]

         Agreeing with the Hearing Committee, the Board recommends that respondent be suspended from the practice of law for six months. This is twice the length of the suspension that Disciplinary Counsel originally sought. The Board and Hearing Committee consider a six-month suspension to be at the top of the range of sanctions that have been imposed in comparable cases involving neglect and incompetence. They view it as justified by the presence in this case of significant aggravating factors - notably, the egregiousness and protracted nature of respondent's misconduct, his failure to acknowledge it and accept responsibility, and what the Committee found to be the evasiveness and dishonesty of his testimony.

         On the facts before us, we agree that a stern sanction is necessary - "not to punish the attorney but to protect the public and the courts, to maintain the integrity of the profession, and to deter other attorneys from engaging in similar misconduct."[17] For the reasons persuasively set forth in the report before us, we defer to and accept the Board's recommendation of a six-month suspension.[18]

         Accordingly, respondent Nathaniel H. Speights is hereby suspended from the practice of law in the District of Columbia for a period of six months, effective thirty days from the date of this opinion. Within ten days thereafter, respondent must file an affidavit in compliance with D.C. Bar Rule XI, § 14 (g). For purposes of reinstatement, respondent's suspension will be deemed to run from the date he files that affidavit.

         So ordered.

         APPENDIX

         Report and Recommendation of the Board on Professional Responsibility, In re: Nathaniel H. Speights, Board Docket No. 12-BD-017

         DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

         Board Docket No. 12-BD-017

         Bar Docket No. 2010-D048

         REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

         Respondent Nathaniel H. Speights is charged with violations of Rules 1.1(a) (failure to provide competent representation), 1.1(b) (failure to represent client with the skill and care afforded by other lawyers in similar matters), 1.3(a) (failure to represent his client zealously and diligently), and 1.3(c) (failure to act with reasonable promptness), arising out of his representation of Anders Bjorgung and his parents in a personal injury case concerning injuries Anders suffered in a skiing accident. The Ad Hoc Hearing Committee's report, dated June 8, 2015, found that there was clear and convincing evidence that Respondent committed all of me charged rule violations, and recommended that he be suspended from the practice of law for six months.

         Disciplinary Counsel[1] took no exception to the Report and Recommendation of the Hearing Committee. Respondent took exception to the Hearing Committee's findings and recommended sanction. In his brief to the Board, Respondent argues that die Hearing Committee erred in denying his motion to dismiss the charges against him, and in denying his motion to strike die testimony of Disciplinary Counsel's expert. Respondent also argues that many of the Hearing Committee's findings of fact and credibility determinations were in error, and that die evidence was insufficient to conclude mat Respondent committed any Rule violation. No oral argument was held before the Board.[2]

         The Board, having reviewed the record and me briefs of me parties, concurs with the Hearing Committee's factual findings as supported by substantial evidence in the record and with its conclusions of law.[3] For the reasons set forth in the Hearing Committee's Report and Recommendation, which is attached hereto and incorporated by reference, we recommend that Respondent be suspended for six months. We further recommend that the period of suspension run for purposes of reinstatement from the filing of the affidavit required by D.C. Bar R. XI, § 14(g). See In re Slosberg, 650 A.2d 1329, 1331-33 (D.C. 1994).

         DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY AD HOC HEARING COMMITTEE

         Board Docket No. 12-BD-017

         Bar Docket No 2010-D048

         REPORT AND RECOMMENDATION OF THE AD HOC HEARING COMMITTEE

         This matter arises out of Respondent Nathaniel H. Speights' representation of Anders Bjorgung and his parents in connection with injuries Anders suffered in a skiing accident. Bar Counsel alleges that Respondent violated D.C. Rules of Professional Conduct ("Rules") 1.1 (a) (failure to provide competent representation), 1.1(b) (failure to represent client widi die skill and care afforded by other lawyers in similar matters), 13(a) (failure to represent his client zealously and diligently), and 1.3(c) (failure to act with reasonable promptness). Respondent denies that he committed the alleged violations. For tbe reasons set forth below, the Hearing Committee finds mat Bar Counsel established violations of Rules 1.1(a), 1.1(b), 1.3(a), and 1.3(c) and recommends that he be suspended for six months.

         I. Procedural Background

Bar Counsel filed a Petition Instituting Formal Disciplinary Proceedings and a Specification of Charges against Respondent on May 24, 2012 (BX E), [1] and served Respondent on June 1, 2012. BX F. Respondent timely filed his Answer (BX H) and filed a Motion to Dismiss the Specification of Charges. BX G. Pursuant to Board Rule 7.16(a) and In re Ontell, 593 A.2d 1038, 1040 (D.C 1991), the Hearing Committee deferred consideration of Respondent's motion. The Hearing Committee now recommends that the motion be denied. See Part II1.A, infra,
On November 29, 2012, Bar Counsel moved to strike the expert report and prohibit the testimony of Respondent's proffered expert witness, Randell Hunt Norton, Esquire, on the ground that he intended to offer an opinion that Respondent's conduct did not violate the charged Rules of Professional Conduct. Respondent opposed the motion, arguing that Mr, Norton was providing expert opinion as to the applicable standard of care in personal injury cases. The Hearing Committee granted the motion to strike, and prohibited expert testimony regarding the question whether Respondent had committed the alleged rule violations. The Hearing Committee allowed Mr. Norton to testify as to the applicable standard of care. The Hearing Committee also ordered Respondent to file a copy of Mr. Norton's report, after redacting all references to his opinions as to the charged rule violations. Id. Respondent timely filed an amended expert report.
Respondent's witness list also included two physicians: Dr. Melinda Gamer and Dr. Lauro Halstead. Respondent proffered that Dr. Garner would testify that an arm injury Respondent suffered in a March 2004 car accident "merited [Respondent's] taking a leave of absence from March 2004 to December 2005, " and that Dr. Halstead would testify about "the nature and extent of his treatment of the Respondent." On December 12, 2012, Bar Counsel moved to exclude evidence relating to the arm injury, on the ground that Respondent had failed to give the required notice under Board Rule 7.6(a) to assert disability in mitigation. In a response to Bar Counsel's motion, Respondent explained that he did not seek to introduce evidence of disability pursuant to Board Rule 7.6 and In re Kersey, 520 A.2d 321 (D.C 1987), but rather to explain the circumstances surrounding his alleged misconduct. The Hearing Committee admitted this evidence, and deferred addressing its relevance. Tr. 22-23, The relevance of the evidence of Respondent's arm injury is discussed infra at pages 21-22.
The hearing was held on December 20 and 21, 2012, and January 25, 2013, before Laura S. Shores, Esquire, Chair, David Bernstein, Public Member, Lucy Pittman, Esquire, Attorney Member. Assistant Bar Counsel Hamilton P. Fox, III, Esquire, appeared for the Office of Bar Counsel; David A. Carr, Esquire, appeared for Respondent. Respondent was present throughout the hearing. Both sides presented documentary exhibits, all of which were admitted into evidence. See BX A-H and 1-86; RX 1-10; Tr. 756-59. Bar Counsel called four witnesses: Anders Bjorgung, the complainant; Joan Ellis, the complainant's mother, Respondent, and Peter C. Grenier, Esquire, an expert in representing plaintiffs in personal injury litigation. Respondent called three witnesses: Keith W. Watters, Esquire, who served as co-counsel with Respondent in the underlying matter; Mr. Norton, who testified as an expert in representing plaintiffs in personal injury litigation; and Dr. Halstead. Respondent also offered as an exhibit the deposition testimony of Dr. Gardner, Respondent's treating physician.
Following the close of the evidence relating to the alleged rule violations, the Hearing Committee made a preliminary, non-binding determination that Bar Counsel had proved at least one rule violation. Tr. 763; see Board Rule 11.11. Bar Counsel then offered two additional exhibits in aggravation of sanction, which were admitted. See BX 87, 88. After the hearing closed, Respondent moved to strike BX 88. Bar Counsel did not oppose that motion. Respondent also moved to strike the testimony of Bar Counsel's expert witness, Peter Grenier. Bar Counsel opposed that motion. As discussed in Part III.A, infra, Respondent's motion to strike BX 88 is granted, and Respondent's motion to strike Mr. Grenier's testimony is denied.

         II. Findings of Fact

         1. Respondent, Nathaniel H. Speights, was admitted to the District of Columbia Bar on June 15, 1978, and subsequently assigned Bar number 952036. BX A.

         2. On April 23, 2001, Anders Bjorgung ("Anders"), and his parents, Anders Bjorgung ("Bjorgung Sr.") and Joan Ellis ("Ellis"), engaged Respondent's law firm, Speights and Mitchell, to represent them in connection with injuries Anders had suffered in a February 10, 2001 skiing accident at the Whitetail Mountain Ski Resort in Mercersburg, Pennsylvania. Anders, Bjorgung Sr., Ellis, and Respondent signed the "Legal Representation Agreement." This was a contingent fee engagement, with the clients responsible for paying expenses. BX 73; Tr. 32-33, 37 (Ellis); Tr. 95-97 (Anders).

         3. Prior to the accident, Anders and his father signed releases which, under the Pennsylvania Skier's Responsibility Act (42 Pa. C.S.A. § 7102(c)), would require the plaintiffs to prove gross negligence in order to recover damages arising out of me skiing accident. Tr. 35- 37 (Ellis); Tr. 97-89 (Anders); Tr. 125, 130-31, 155 (Respondent); Tr. 272 (Grenier).

         4. A claim arising out of the accident was subject to a two-year Statute of Limitations. See 42 Pa. C.S.A. § 5524. However, because Anders was a minor at the time of the accident, die Statute of Limitations for his claims did not expire until two years after his 18thbirthday. See 42 Pa. C.S.A. § 5533. Thus, the Statute of Limitations for Anders' parents' claims would expire on February 9, 2003, but Anders' claims would not expire until he turned 20, or November 24, 2003. Tr. 333 (Grenier).

         5. Respondent did not place the potential defendants on notice of Anders' claims or his parent's claims, or warn them to preserve evidence See generally Tr. 266-71 (Grenier). Indeed, Respondent did not conduct a sufficient investigation to enable him to identify the proper defendants. Bar Counsel's expert testified that in order to determine the proper defendant, Respondent should have done a title search, checked the Recorder of the Deeds office, run a report on the property address, used an investigator, "or perhaps even [sent] a letter to Whitetail Resort Limited Partnership, " (a business entity Respondent identified by searching through the Pennsylvania Department of State web site), which may have generated a response identifying the proper property owner. Tr. 270, 325, 327-28, 330-31 (Grenier). Instead, Respondent's only effort to identify the owner and operator of the ski resort consisted of an Internet search. The documents he found, (RX 3 and 4), did not identify die owner or operator of the ski resort. Tr. 143-47 (Respondent); Tr. 324-29 (Grenier). We credit Bar Counsel's expert's testimony on this issue, as it was unrebutted by Respondent's expert

         6. Moreover, mere is no evidence that Respondent conducted any meaningful investigation regarding the facts of the case before filing a lawsuit, and his client files contained relatively few materials, which were apparently obtained from the ski resort. Tr. 38-40 (Ellis); Tr. 271 (Grenier); Tr. 612 (Norton). Respondent failed to preserve Anders' records of online conversations with his friends regarding the accident, which could have been used to identify witnesses and obtain their statements for the case. Id.; see also Tr. 100 (Anders). Bar Counsel's expert testified mat the standard of care for representing a plaintiff in a personal injury action required mat Respondent keep a copy of any witness statements or notes. Tr. 416-17 (Grenier). Respondent's expert testified generally that Respondent's investigation prior to filing suit was witiiin "the standard practice . . . among plaintiffs lawyers, and there was nothing unusual about" the extent of Respondent's investigation. Tr. 504 (Norton). Mr. Norton did not specifically deny, however, that Respondent's failure to diligently seek out witnesses, to procure witness statements, or to preserve evidence of witnesses' contemporaneous exchanges with his client failed to meet the standard of care. Thus, we credit the testimony of Bar Counsel's expert that Respondent should have taken efforts to discover and preserve such evidence. Respondent also failed to make an adequate effort to determine whether other evidence existed that might support his client's claims.

         7. Although Respondent told the Bjorgung family that he had employed a private investigator, he never provided them with an investigator's reports. Tr. 44 (Ellis); Tr. 100 (Anders); Tr. 140-41 (Respondent). Respondent testified mat he could not remember the name of the investigator and admitted that he had no copies of any reports prepared by an investigator or invoices supporting his claim that he retained one. Tr. 224-25 (Respondent). Respondent insisted that the investigator did prepare reports, but claimed that they would not have been kept in the client file. Tr. 141 (Respondent). Based on our assessment of Respondent's credibility and the lack of corroborating evidence, we find that Respondent did not retain an investigator, and his testimony that he hired an investigator was dishonest. We see no reason-and Respondent did not give one;-why a lawyer would not keep copies of an investigator's reports in the client's file. The absence of any documentary evidence of the investigator's retention or any reports, and Respondent's professed inability to recall the investigator's name, persuades us that no investigator was retained. Moreover, Respondent's demeanor during this part of his testimony, as it was at several points during examination by Bar Counsel, was dismissive, if not belligerent. We find that his testimony on this subject was deliberately false, which further confirms our finding that he failed to make adequate efforts to obtain evidence that might have supported his client's claims.

         8. On November 21, 2003, four days before the expiration of the Statute of Limitations on Anders' claims, Respondent caused a pro se complaint to be filed on Anders' behalf in the United States District Court for the Middle District of Pennsylvania. BX 2; Tr. 333 (Grenier). The action was filed as a pro se complaint because Respondent was not admitted to practice in the Middle District of Pennsylvania, and had not engaged local counsel, despite having told his clients that he would do so. Tr. 38, 40-41 (Ellis); Tr. 100-101 (Anders); Tr. 174-78 (Respondent).

         9. Respondent's expert testified that filing close to the expiration of the Statute of Limitations gives a personal injury plaintiff an advantage because it catches the defendant unaware and unprepared. See Tr. 507-08 (Norton) (testifying to the advantage of late-filing: that the plaintiff will be prepared to go forward, while the defendant might not be prepared). We find that Respondent did not delay in filing suit in order to gain an advantage. Respondent was not prepared to prosecute the suit, having conducted limited research to determine the proper defendants, and limited factual investigation, and having failed to retain local counsel or gain his admission pro hac vice. We find that Respondent delayed in filing the suit because he was not prepared to file suit any sooner, and his delay in filing suit was not a strategic decision.

         10. The complaint Respondent prepared alleged that Anders had incurred medical expenses and sought damages to recover those expenses. BX 2 at 19. However, these expenses were not recoverable, because Anders did not pay them. His parents and their insurance company paid Anders' medical expenses, and any claim for reimbursement was theirs, not Anders'. Tr. 278-79 (Grenier). But by November 21, 2003, when Anders' pro se complaint was filed, the two-year Statute of Limitations on his parents' claims had expired pursuant to 42 Pa, C.S.A. § 5524. Tr. 279-81 (Grenier). Respondent thus never filed suit to recover the parents' medical expenses, having concluded, incorrectly, that any amount recovered would be fully subrogated to their insurance company. Respondent advised Anders' parents accordingly Tr. 42-43 (Ellis). Bar Counsel's expert testified that if the parents had joined the lawsuit, and it had been filed within two years of the date of the accident (February 9, 2003), the parents could have recovered substantial medical damages, assuming liability had been established. Tr. 279-81 (Grenier). Respondent's expert testified that he thought Respondent "gave appropriate advice" regarding the subrogation rights of the medical insurer, but acknowledged that he was unsure of the Pennsylvania law on the collateral source rule for medical damages. Tr. 510 (Norton). We credit the testimony of Bar Counsel's expert, who reviewed the relevant Pennsylvania statutes and case law prior to preparing his report and testimony. Thus, we find that Respondent incorrectly advised Anders' parents regarding their potential recovery.

         11. The jurisdictional portion of the complaint alleged that the "matter in controversy exceeds the sum of Fifty Thousand ($50, 000) Dollars" (BX 2 at 17); however, in order to properly invoke federal jurisdiction based on diversity of citizenship, Respondent was required to plead that the amount in controversy exceeded $75, 000. See 28 U.S.C. § 1332(a); Tr. 340-41 (Grenier), 650-52 (Norton); see also Tr. 139-40 (Respondent). Bar Counsel's expert testified that by "having pled less than the required jurisdictional amount, this complaint [was] defective on its face" and the court could have summarily dismissed the complaint. Tr. 341-42 (Grenier). We credit the testimony of Bar Counsel's expert, as it is consistent with the requirements of 28 U.S.C. § 1332(a) in effect at the time.

         12. The complaint named as defendants Whitetail Resort and Whitetail Ski Company, Inc., alleging that at the time of the accident, Whitetail Resort owned the real property on which the ski resort was located, and that Whitetail Ski Company, Inc. operated the resort, BX 2, The defendants filed an answer on January 20, 2004, in which they disclosed that at the time of the accident, the property owner was Snow Time, Inc., and that the operator was Whitetail Mountain Operating Corp. The answer also provided the addresses of these entities. BX 3; Tr. 163-64 (Respondent). Respondent, however, made no effort to amend the complaint. In the Joint Case Management Plans, which were filed on May 24, 2004, and November 22, 2004, the named defendants reiterated that they did not own or operate the ski area. The November 22, 2004 Joint Case Management Plan again set forth the correct names and addresses of the actual owner and operator of the ski area. Despite being informed of the proper party defendants on these occasions, Respondent did not make any effort for three-and-a-half years to amend the complaint to include the proper owner and operator as parties. See Tr. 329-32 (Grenier), 668-69 (Norton).

         13. Respondent did not seek pro hac vice admission in the Middle District of Pennsylvania until February 20, 2004, almost three months after the pro se complaint was filed. BX 6. Respondent sought pro hac vice admission on his own behalf, without a local counsel, which was granted. BX 1 at 2.[2]

         14. After his pro hac vice admission, Respondent sought a 40-day continuance of the case management conference previously scheduled by the district court. BX 5; BX 7; Tr. 185 (Respondent). Respondent's expert conceded that when representing a plaintiff "it's never in the interest of the client to have any delay . . ." Tr. 534 (Norton); see also Tr. 626-27 (Norton), Nevertheless, this was the first in a series of motions to postpone the initial case management conference, all made by Respondent. BX 9; BX 14 at 88.

         15. The court granted the motion and continued the case management conference until April 20, 2004, and directed the parties to file a case management plan by April 15, 2004. BX 8; Tr. 187 (Respondent). The order provided that the conference would be by conference call, to be initiated by Respondent. BX 8.

         16. Respondent did not file a case management plan by the deadline. Instead, on April 19, 2004, four days after the case management plan was due, Respondent moved for an additional 60-day continuance on the ground that, five weeks earlier, he had suffered a severe arm fracture leading to nerve damage. BX 9. The court granted Respondent's motion in part, and continued the conference for 30 days, until May 27, 2004, with the case management plan dueonMay2l. BX 10.

         17. On May 24, 2004, defendants' counsel sent a draft case management plan to Respondent, and filed a partial case management plan with the court. BX 11-12; see also BX 14. In his cover letter to Respondent enclosing the partial plan, defense counsel reminded Respondent that he was to initiate the May 27 conference call. BX 11. Respondent did not do so, and the call never took place. BX 14 at 88-89; Tr. 192 (Respondent).

         18. On October I, 2004 the court ordered that a scheduling conference be held on November 10, 2004, with the case management plan due on November 5. BX 13.

         19. Once again, the case management plan was not timely filed because Respondent did not coordinate with defense counsel or cooperate in preparing it. The case management conference call went ahead as scheduled on November 10, 2004. BX 14 at 89. During the scheduling conference, Respondent claimed that he was unable to represent die plaintiff effectively because he had suffered a debilitating arm injury. Id. The court ordered him to transfer responsibility for die case to Keith Walters, Esquire, a member of the District of Columbia Bar and Respondent's close friend (Tr. 455-56 (Watters)), and to associate with local counsel. BX 14 at 89. The court, for a third time, ordered the parties to file a case management ...


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