In re John T. Szymkowicz, John P. Szymkowicz, Leslie D. Silverman, and Robert King, Respondents. Members and Former Member of the Bar of the District of Columbia Court of Appeals of the District of Columbia (Bar Registration Nos. 946079, 462146, 448188, and 922575)
April 11, 2018
Report and Recommendation of the Board on Professional
Responsibility (09-BD-48, 09-BD-49, 09-BD-50, 09-BD-51)
N. Levin for respondents John T. Szymkowicz and John P.
W. King, pro se.
D. Silverman, pro se, made an appearance.
L. Porter, Assistant Disciplinary Counsel, with whom Hamilton
P. Fox, III, Disciplinary Counsel, and Jennifer P. Lyman,
Senior Assistant Disciplinary Counsel, were on the brief, for
THOMPSON and MCLEESE, Associate Judges, and STEADMAN, Senior
attorney-discipline matter arises from respondents'
representation of Genevieve Ackerman. In its initial report
and recommendation, the Board on Professional Responsibility
concluded that respondents had not been shown to have
violated the District of Columbia Rules of Professional
Conduct in connection with their representation of Ms.
Ackerman, except that respondent Robert King violated D.C. R.
Prof. Conduct 1.5 (b), by failing to obtain a written
retainer agreement from Ms. Ackerman.
In re Szymkowicz, 124 A.3d 1078 (D.C. 2015) (per
curiam), this court accepted the Board's conclusions in a
number of respects, but referred the matter back to the Board
for further proceedings with respect to whether respondents
violated D.C. R. Prof. Conduct 1.7, which governs conflicts
of interest. Id. at 1082-89. Specifically, we
concluded that, because of the risks of conflicts of interest
between Ms. Ackerman and her son, Dr. Stephen Ackerman, none
of the respondents could permissibly have represented Ms.
Ackerman unless the respondents obtained Ms. Ackerman's
informed consent to the representation, pursuant to Rule 1.7
(c). Id. at 1085-88.
further consideration, the Board concluded that Disciplinary
Counsel had failed to prove by clear and convincing evidence
that respondents John T. and John P. Szymkowicz, who are
father and son, failed to obtain informed consent from Ms.
Ackerman. On the other hand, the Board concluded that Mr.
King and respondent Leslie D. Silverman violated Rule 1.7
(b), because neither Mr. King nor Ms. Silverman offered
evidence that Ms. Ackerman gave them informed consent. The
Board, however, recommended against imposing sanctions
against Mr. King or Ms. Silverman on the basis of their
violations of Rule 1.7. Disciplinary Counsel takes exception
to the Board's conclusions and recommendations. We adopt
the Board's conclusion that the Szymkowiczes were not
shown by clear and convincing evidence to have violated Rule
1.7. As a sanction for Mr. King's violation of Rule 1.7,
we publicly censure Mr. King in this opinion. Because Ms.
Silverman was disbarred by consent in a separate matter,
In re Silverman, 175 A.3d 89 (D.C. 2017) (per
curiam), we dismiss the current disciplinary proceeding
against Ms. Silverman as moot. Cf., e.g., In re
McCoole, 791 A.2d 910 (D.C. 2002) (per curiam) (where
respondent was disbarred in one disciplinary proceeding,
court dismissed second disciplinary proceeding as moot).
facts in this matter are discussed in some detail in our
initial opinion in this case. In re Szymkowicz, 124
A.3d at 1079-82. In brief, Ms. Ackerman, who was then
eighty-five years old, set up a trust in 2002 to benefit both
herself and Dr. Ackerman. Id. at 1079. Dr. Ackerman
soon raised issues about the administration and validity of
the trust, and Dr. Ackerman hired the Szymkowiczes to
represent him. Id. at 1080. In 2005, the
Szymkowiczes began to also represent Ms. Ackerman.
Id. After extensive litigation, the courts upheld
the trust. Id. at 1080-81.
March 2007, John T. Szymkowicz withdrew from one pending
case, because of a concern that he would be called as a
witness in the case. In re Szymkowicz, 124 A.3d at
1081. Ms. Silverman and Mr. King subsequently represented Ms.
Ackerman in that case and also with respect to related
matters. Id. Ms. Silverman was paid by Dr. Ackerman
from Ms. Ackerman's funds, and it was Dr. Ackerman who
retained Mr. King to act as Ms. Ackerman's attorney in
one of the related matters. Id. While representing
Ms. Ackerman, Ms. Silverman and Mr. King communicated with
Dr. Ackerman, who held Ms. Ackerman's power of attorney
was a substantial dispute before the Hearing Committee as to
whether Ms. Ackerman was competent during the relevant time
period, or whether instead Ms. Ackerman was not competent and
respondents knew or should have known that she was
incompetent and wrongfully took advantage of Ms. Ackerman to
benefit themselves and Dr. Ackerman. In re
Szymkowicz, 124 A.3d at 1081-86. The Hearing Committee
found that although Ms. Ackerman had some mental limitations,
she was competent. Id. at 1082. The Board ...