In re Szymkowicz

          Argued April 11, 2018

          On Report and Recommendation of the Board on Professional Responsibility (09-BD-48, 09-BD-49, 09-BD-50, 09-BD-51)

          Robert N. Levin for respondents John T. Szymkowicz and John P. Szymkowicz.

          Robert W. King, pro se.

          Leslie D. Silverman, pro se, made an appearance.

          Julia 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 petitioner.

          Before THOMPSON and MCLEESE, Associate Judges, and STEADMAN, Senior Judge.

          OPINION

          PER CURIAM.

         This 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 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.

         On 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).

         I.

         The 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.

         In 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 (POA). Id.

         There 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 ...