DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : KENNETH H. SHEPHERD, : Bar Docket Nos & : Respondent. : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes to the Board on Professional Responsibility (the Board ) from the Ad Hoc Hearing Committee (the Committee ), which concluded that Respondent violated the following District of Columbia Rules of Professional Conduct (the Rules ), Rule 1.16(d), 1.3(a), 1.3(c) and 1.4(a), when he failed to appear for an Initial Conference, resulting in dismissal of his client's action. The Committee has recommended that Respondent be censured with the requirement that he take a course on professional responsibility approved by Bar Counsel. Respondent has filed exceptions requesting that the matter should be dismissed. Bar Counsel excepts to the Committee's refusal to find a violation of Rule 8.4(d). For the reasons set out below, the Board concludes that Respondent violated Rules 1.16(d), 1.3(a) and (c), 1.4(a) and 8.4(d). The Board concurs with the Hearing Committee that the sanction should be public censure coupled with the requirement to take a course in professional responsibility.

2 I. Procedural History On January 26, 1999, 1 Bar Counsel filed with the Board a Specification of Charges and a Petition Instituting Formal Disciplinary Proceedings in this matter alleging that Respondent violated the following Rules: Rules 1.3(a), 1.3(b)(2), 1.3(c), 1.4(a), 8.4(c), 8.4(d) and 1.16(d). Respondent denied the allegations. This matter was heard by the Committee on October 28, Bar Counsel s Exhibits 1-15 were received in evidence. Tr. 13. Respondent's Exhibits 1, 2 and 4 were received into evidence. 2 Id. No testimony was offered on the issue of whether Petitioner had violated the rules charged in the petition. The parties stipulated as to certain facts. These stipulations were reflected in the Transcript as follows: 1. Respondent acknowledges that he entered an appearance in the matter in reference to Ms. Kennedy. 2. Respondent filed a Complaint on behalf of Ms. Kennedy. 3. A Contingency Agreement was entered into [there was no stipulation as to the parties who entered into this Agreement]. 4. Respondent contacted Mr. Stanley Gilchrist to assist him with the case. 5. Respondent failed to appear for the Initial Scheduling Conference on May 2, Respondent wrote Mr. Gilchrist regarding Mr. Gilchrist's lack of effort in pursuing the case. 1 On August 11, 1999, Bar Counsel also filed a petition in Bar Docket At the hearing on October 28, 1999, Bar Counsel indicated that it would not proceed on that petition. In Bar Counsel's Proposed Findings of Fact, Conclusions of Law and Recommendation as to Sanction, Bar Counsel stated that it was not pursuing the alleged violations of Rules 1.3(b)(2) and 8.4(c). Accordingly, we dismiss the petition in Bar Docket No and the allegations in Bar Docket No of allegations of violation of Rules 1.3(b)(2) and 8.4(c) for failure of proof. In re Ontell, 593 A.2d 1038, 1040 (D.C. 1991); In re Reilly, B.D.N at 4 (Order dated July 17, 2003). 2 Bar Counsel s exhibits will be referred to as BX. Respondent s exhibits will be referred to as RX. The stipulation of the parties will be referred to as Stip. The transcript of the hearing will be referred to as Tr. 2

3 Tr. at Respondent acknowledges that he failed to follow up aggressively Mr. Gilchrist's efforts in prosecuting the Complaint of Ms. Kennedy. 8. Respondent did not adequately advise Ms. Kennedy of the status of her case. At the conclusion of the hearing, the Committee announced its preliminary, non-binding determination that Bar Counsel had presented evidence sufficient to permit a finding of a violation of at least one of the alleged charges. Tr. at 19. Bar Counsel offered evidence that Respondent had previously received an informal admonition from the Bar on September 5, Tr. at 20; BX 16. In mitigation of sanction, Respondent offered the testimony of Grandison E. Hill who testified as to Respondent's character and competence. Id. at Following the hearing, the Committee Chair requested post-hearing briefs filed according to the briefing schedule prescribed by Board Rule Tr. at Bar Counsel filed Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction on December 15, Respondent filed a post-hearing brief on March 31, 2000, and Bar Counsel filed a reply on April 21, The Committee issued its Report and Recommendation on March 11, 2003, finding that Respondent violated Rules 1.3(a), 1.3(c), 1.4(a) and 1.16(d) and recommending that Respondent be censured and be required to take a course in professional responsibility. Respondent filed exceptions, contending that the Hearing Committee report must be rejected for reasons based primarily on the Hearing Committee's delay in issuing the report. Bar Counsel filed an exception objecting to the refusal by the Hearing Committee to find a violation of Rule 8.4(d). Oral argument was held before the Board on September 11, On September 8, 2003, Respondent attempted to file a reply brief. This brief was rejected by the Board as untimely under Board Rule Respondent then moved on September 9, 2003 to supplement his brief. The Board denied this motion as untimely. 3

4 II. Findings of Fact The Board has reviewed and adopts the Findings of Fact made by the Committee which are set forth here with minor changes. 4 The Board also makes some additional findings based on its review of the record. Hearing Committee Findings 1. Respondent is a member of the District of Columbia Bar, having been admitted on May 19, HC Rpt. at Ms. Delores Kennedy, a resident of the District of Columbia, was arrested and incarcerated in While in detention, she believed that she was given incorrect prescription medication by employees of the District of Columbia Department of Corrections (the Department of Corrections ). Id. 3. On December 6, 1994, Ms. Kennedy retained Respondent by signing a Contingency Agreement. The Agreement states that Respondent is being retained for claims for personal injuries and damages. There is no specification given as to the nature of the personal injuries or their cause, but in the absence of any other evidence to the contrary, the Hearing Committee understood that Ms. Kennedy retained Respondent to represent her in connection with her suit against the Department of Corrections and that this Agreement sets forth the terms of that retention. Id. 4. On December 12, 1994, Respondent prepared and served on the Mayor of the District of Columbia a notice of Ms. Kennedy's claim against the District of Columbia. Id. 5. On January 31, 1997, Respondent filed a civil claim against the District of Columbia on behalf of Irma Jean Cousart, Delores Kennedy and Lora Jackson ( Plaintiffs ). Id. at 4. 4 We cite to the record before the Hearing Committee for findings made by the Board. Findings made by the Hearing Committee will be cited to the Hearing Committee Report ("HC Rpt."). 4

5 6. The Trial Court set an Initial Conference for May 2, 1997, at 9:30 a.m. and notified Respondent and Corporation Counsel through a Notice dated January 31, HC Rpt. at On April 15, 1997, Respondent wrote a letter to Ms. Kennedy advising her that her lawsuit had been filed and that an Initial Conference had been scheduled for May 2, Id. 8. On May 2, 1997, the Court called Plaintiffs' civil suit for the Initial Conference. No one appeared on behalf of Plaintiffs, i.e., Complainant Ms. Kennedy, Ms. Cousart and Ms. Jackson, and the Court dismissed the civil action without prejudice. Id. 9. In a subsequent Motion for Relief From Order of Dismissal Without Prejudice, filed on April 21, 1998, Respondent represented that: Id. On or about April 15, 1997, [Respondent] turned his file over to attorney Stanley Gilchrist, Esquire with the understanding that Mr. Gilchrist would enter his appearance [and] prosecute the case to conclusion. For reasons that are not known, Mr. Gilchrist did not appear at the Initial Conference, did not advise that he had not appeared and would not pursue the case as agreed, did not return the file. [sic] When no counsel appeared at the time the case was called on May 2, 1997 and the Court dismissed the case without prejudice. It is now understood that Mr. Gilchrist has expired due to an illness which it is believed was a likely cause of his non-appearance at the status call. 10. Attached to Respondent's Motion is an unsigned copy of a letter dated April 15, 1997 to Stanley Gilchrist from Respondent. The letter states that it forwards Respondent's file on the Kennedy case, that it notes the timing of the Initial Conference, and that it encloses a Praecipe, which enters your appearance and withdraws mine, which you should sign and file on or before your appearance on May 2, Id. at The letter further asks Mr. Gilchrist to contact the clients and advise they [sic] [that] you will behandling [sic] the litigation of this [sic] matter matters [sic]. Id. 5

6 12. On June 2, 1997, Respondent wrote a letter to Mr. Gilchrist stating, I have left several messages. Please advise on the status of the above case. The case referenced in the letter was Ms. Kennedy's case. Id. at Based upon findings of fact 9 through 12, above, the Committee found that Respondent did reach an agreement with Mr. Gilchrist for Mr. Gilchrist to handle the Kennedy matter. Id. Additional Findings By Board 14. On April 15, 1997, Respondent wrote to Ms. Kennedy apologizing for the lack of communication, advising her of the scheduled Initial Conference and undertaking to advise her of the results of the conference. The letter did not mention that Respondent was contemplating a transfer of the case to another attorney. The letter stated in full: BX 14 at 3. In response to your letter dated April 9, I am sorry for the delay in responding to you. I had previously requested that my secretary provide you with the status of your case, but with my busy case load at this time, I can only assume she inadvertently failed to do so. Your lawsuit has been filed. We are now scheduled for an Initial Conference on May 2, 1997 before Judge Eilperin. Once that conference is over, the actual process of litigation will begin. I will advise you of the outcome of the conference, but you may hear from me sooner, depending on what the District decides to do regarding discovery in this matter. I'll be in touch. 15. On the very same day, Respondent sent the file on the case to Stanley L. Gilchrist, Esq. The transmittal letter is quoted in full: Herewith is my file on the case of Irma Cousart, et al. v. District of Columbia, that we discussed at the flower shop. The plaintiff's [sic] are Irma Cousart, Delores Kennedy and Lori Jackson. Please note that the initial hearing is set for 9:30 a.m. on May 2, 1997 at Court Room #214, before Judge Eilperin. The file contents pretty much explain the incident 6

7 out of which the claims arise. I am confident that you will handle this matter well and I will remain available to assist you as needed. I am enclosing a praecipe which enters your appearance and withdraws mine, which you should sign and file on or before your appearance on May 2, I hereby assign to you all my rights under the enclosed contingency fee agreements. My expenses include a $120.00, which amount I waive in your favor. Please contact the clients and advise they taht (sic) you will behandling (sic) the litigation of this matter matters (sic). BX 9 at On April 28, 1997, Respondent wrote a letter to Mr. Gilchrist enclosing an assignment document for Ms. Kennedy to sign acknowledging that Mr. Gilchrist would represent her. BX 8 at 1. It is noteworthy that April 28, 1997 was a Monday, four days before the Initial Conference on Friday, May 2, 1997, and that the client whose signature Mr. Gilchrist was asked to obtain was incarcerated. 17. On April 12, 1998, Ms. Kennedy filed an ethical complaint with the Office of Bar Counsel, claiming that Respondent had failed to inform her of his progress in representing her. She stated that on January 8, 1998, she had talked with Respondent on the telephone but that he had refused to provide any information concerning the status of her lawsuit. BX 12 at On April 21, 1998, the District of Columbia opposed Respondent's motion for relief. BX 10 at 1-4. On April 29, 1998, the Trial Court denied Respondent's motion, noting that Respondent's neglect was not excusable and that the lapse of time from the dismissal to the motion for relief was too great to excuse. BX 11 at Plaintiffs filed an appeal from this order on June 1, The District of Columbia moved to remand the case to the Trial Court to permit the Court to enter a written order together with findings and conclusions and to permit the Clerk of the Court to docket the order. This motion was granted by order of the D.C. Court of Appeals on March 16, RX 2 at

8 20. On April 1, 1999, the Trial Court issued an order on remand. The Trial Court stated that the May 2, 1997 jacket entry dismissing the complaint without prejudice was docketed by the Clerk's office by computer entry. The Trial Court explained that under this procedure no written order is entered or served upon the parties, but that the computer entry is available to the public or counsel on inquiry. The Trial Court noted that it was counsel's burden to inquire as to the status of the case: RX 2 at 4-5. Especially in the circumstances of this case there is no good reason for counsel not to have made such an inquiry. The initial scheduling conference was set for a date certain, May 2, Mr. Shepherd was counsel of record and knew of that date. It had been given to him at the time he filed the complaint. When May 2 nd came and went he must have known that some action had likely been taken on the case on May 2, 1997 at the time of the initial scheduling conference. It was his burden to inquire about the nature of that action far earlier than some 11 months alter [sic] when he filed his April 2, 1998 Motion for relief from the order of dismissal without prejudice. 21. Plaintiffs moved to reinstate their appeal. In the order granting the reinstatement of the appeal, the Court directed Plaintiffs to inform the Court whether they would file a supplemental brief. After they failed to do so, the Court issued an order directing the District to file a brief. RX 2 at In its brief, the District argued that the dismissal was within the trial court's discretion and, also, that Complainant's rights had not been prejudiced, because of the fact that her incarceration tolled the statute of limitations. RX 2 at

9 23. By order of March 23, 2000, the Trial Court's decision on remand was affirmed by the Court of Appeals. Cousart v. District of Columbia, 791 A.2d 92 (D.C. 2000). In its Memorandum Opinion and Judgment, the Court stated: Appellants' trial counsel failed to appear at the initial conference without any adequate explanation. Furthermore, appellants' trial counsel received written notice of the time and place of the hearing. Therefore, we find no abuse of discretion in the trial court's decision to dismiss appellants' case without prejudice. Cousart v. District of Columbia, No. 98-CV-823, slip op. at 2 (D.C. Mar. 23, 2000). In commenting on the trial court's refusal to grant the Rule 60(b) motion for relief from the dismissal, the Court noted: Here, appellants' Rule 60(b) motion did not advance a genuine reason why counsel of record did not appear at the initial conference, nor why counsel did not promptly follow up on the results of the initial hearing. 5 The trial court also found that the delay of eleven months between the dismissal and the motion for relief was inexcusable and prejudiced the District. Id. at 3. III. Analysis Most, but not all, of Respondent's arguments are directed to collateral issues and not to whether Bar Counsel has established violations of the rules. We will first deal with the collateral issues and then address the rule violations found by the Hearing Committee as well as Bar Counsel's contention that Respondent also violated Rule 8.4(d). A. Respondent's Collateral Arguments Respondent principally argues that the charges must be dismissed because the Hearing Committee report was not issued until March 2003, over three years after the hearing in October 5 Although Shepherd proffers that Gilchrist was responsible for the prosecution of appellants' case, Shepherd never complied with Super. Ct. Civ. R. 101(c), by withdrawing his appearance as the attorney of record. 9

10 1999. Respondent relies upon Rule XI, 7(a), which specifies that the Hearing Committee report shall be submitted within 60 days after conclusion of its hearing. Based upon this delay, he argues that the Hearing Committee report ruling is barred by Rule XI and by the doctrine of laches. He also argues that the unexplained delay creates an inference that it was for the purpose of shielding the Assistant Bar Counsel who handled the case from scrutiny of questions concerning the Assistant's ethical violations. Respondent's Exceptions to the Report and Recommendations of the Ad Hoc Hearing Committee ( R. Brief at 9). Finally, he contends -- for the first time in his brief to the Board -- that his prior discipline should not be considered as a matter in aggravation for sanction purposes because that offense was essentially an offense of race and class, suggesting that Bar Counsel would not have proceeded with that matter had the complaint involved a white lawyer and a minority complainant stating that he is aware of a situation in which a white lawyer in a large firm failed to notify a two-lawyer black firm of a $1,800,000 settlement and disbursed the funds. Respondent s Appeal of Committee s Report and Recommendations ( R. Appeal ) at Contentions Based on Delay Respondent's arguments based on delay must be rejected. While the delay is unfortunate, the Court has previously ruled that delay is not a basis for dismissal of a complaint in the absence of prejudice to respondent. In In re Morrell, 684 A.2d 361, 368 (D.C. 1996), citing In re Williams, 513 A.2d 793 (D.C. 1986) (per curiam), the Court held: [A] mere delay in the disciplinary process generally does not provide a legitimate ground for dismissal of the complaint. The public interest in regulating members of the Bar takes precedence over the attorney's interest in having claims speedily resolved. 10

11 See also In re Carlson, 802 A.2d 341, 351 (D.C. 2002) (no due process violation because of delay where there is no demonstration of prejudice); In re Bernstein, 774 A.2d 309, 317 n.14 (D.C. 2001) (60-day requirement is directory rather than mandatory). Although the Court did note in Morrell, that a delay coupled with actual prejudice could result in a due process violation, there is no contention by Respondent that delay adversely affected his defense of the charges, nor would there appear to be a basis for such a contention. Morrell, 684 A.2d at 368. In contrast to the situation where delay occurs prior to the hearing, resulting in faded memories and lessened access to witnesses, here the delay was after the hearing, and Respondent was allowed to continue his practice notwithstanding the pendency of the matter. The feelings of uncertainty and anxiety associated with a pending disciplinary proceeding, which we acknowledge, cannot trump the public interest in enforcing the Rules of Professional Conduct. Respondent's laches argument is similarly unavailing. The purpose of the doctrine of laches is to prevent prejudice to a party from the prosecution of stale claims. See, e.g., Kerrigan v. Kerrigan, 642 A.2d 1324, 1326 (D.C. 1994); Am. U. Park Citizens Ass'n v. Burka, 400 A.2d 737, 740 (D.C. 1979). Bar Counsel prosecuted its allegations of misconduct in a timely manner. In addition, Respondent has shown no prejudice resulting from the delay which -- as noted -- occurred after the fact-finding process had been concluded. Respondent's contentions on this point must be rejected based upon the Court's rulings in Williams, Morrell, Bernstein, and Carlson, supra. 2. Contentions of Bias Respondent makes several bias arguments. First, he asserts that bias must be inferred simply from the Hearing Committee's delay in issuance of the report. R. Brief at 14. Second, 11

12 he alleges that the delay was an effort to protect the Assistant Bar Counsel in this case from disclosure of improper conduct. Id. at 15. Third, he alleges that the misconduct considered a prior discipline was essentially an offense of race and class. R. Appeal at 9. The Court has set out the standards for demonstrating bias. A claim of bias must be predicated on a showing of specific facts, stated with particularity, that would convince a reasonable person that bias exists and that the bias is personal not judicial in nature. See In re Stanback, 681 A.2d 1109, 1117 (D.C. 1996); In re Alexander, 466 A.2d 447, 449 (D.C. 1983). Respondent's contentions do not come close to satisfying these standards. While we regret the delay, there is no basis here for an inference that the delay was motivated by personal animus toward Respondent. Second, Respondent has presented no evidence of improper conduct by the Assistant Bar Counsel. We note that Respondent had filed a motion to disqualify Bar Counsel, based on the allegations that in the specification of charges Assistant Bar Counsel knowingly and maliciously charged that an order of dismissal had been entered when the Superior Court judge dismissed the case by a jacket notation instead of a separate dismissal order. Motion for Disqualification of Ross Dicker at 2. Bar Counsel opposed the motion, which was withdrawn by Respondent at the beginning of the hearing. Tr. at 5. Respondent also argues that, in a postbriefing telephone conference, he was pressured to withdraw statements in his proposed findings of fact concerning Assistant Bar Counsel's ethical violations. R. Appeal at 8. As best as can be determined from the record, a misunderstanding arose in the briefing process. Respondent 12

13 apparently thought that Bar Counsel was expanding upon the violations presented at the hearing 6 and Assistant Bar Counsel thought that Respondent was retreating from his stipulation at the hearing. 7 However, Respondent has made no specific allegations of misconduct or any representations that he was in any way prejudiced as a result of this telephone conference. Respondent's post-hearing pleadings, presented by counsel, before the Hearing Committee make statements alleging misconduct by the Assistant Bar Counsel, but no evidence was advanced to support those allegations and they appear to be utterly unfounded. 8 Third, Respondent's claim of racial bias, raised for the first time in Respondent's briefing to the Board, has no cognizable support in the record. See In the Matter of Clayton J. Powell, Jr., BDN 16-93, (March 23, 1995) (self-serving speculation not a basis for a claim of bias). 3. Analysis of Violations Found by the Hearing Committee. We now look to the Hearing Committee's conclusion that Respondent violated Rules 1.3(a) and (c), 1.4(a) and 1.16(d) and Bar Counsel's contention that the Hearing Committee erred in declining to find a violation of Rule 8.4(d). Rules 1.3(a) and (c). These rules provide in pertinent part as follows: 1.3(a). A lawyer shall represent a client zealously and diligently within the bounds of the law; 6 In support of this contention, Respondent pointed to page 9 of Bar Counsel's Proposed Findings of Fact, Conclusions of Law and Recommendations as to Sanction, which lists the violations charged in the specification of charges. Respondent's Proposed Findings of Fact and Conclusions of Law ("R. Prop. F.") at 1. The remainder of Bar Counsel s brief makes it clear that Bar Counsel was not pursuing allegations of violation of Rules 1.3(b)(2) (intentional prejudice to client) or 8.4(c) (dishonesty). 7 Brief of Bar Counsel In Support of Exception To The Report and Recommendation of the Ad Hoc Committee ("BC Brief") at In a portion of his brief responding to what he sees as Bar Counsel's retreat from the stipulation, Respondent makes what appears to be a proffer of facts. Respondent states that Assistant Bar Counsel told the complainant that the complaint had been dismissed with prejudice, and argues that such statement served Assistant Bar Counsel's purpose of protecting the District of Columbia against Ms. Kennedy's claim, prejudicing her claim against the District and fortifying the disciplinary case. 13

14 * * * 1.3(c). A lawyer shall act with reasonable promptness in representing a client. Violations of Rule 1.3 have been found where respondents have failed to take action on their clients behalf. See, e.g., In re Starnes, 829 A.2d 488 (D.C. 2003) (per curiam); In re Wright, 702 A.2d 1251 (D.C. 1997) (per curiam); In re Lewis, 689 A.2d 561 (D.C. 1997) (per curiam); In re Chisholm, 679 A.2d 495 (D.C. 1996). Respondent in his stipulation effectively acknowledges violating this rule. His client's case was dismissed because no lawyer appeared on her behalf at the Initial Conference. As will be seen in our discussion of Rule 1.16(d), Respondent did not follow the proper procedure for withdrawing from a case. Since he failed to withdraw properly, it was incumbent upon him to be present at the hearing. As Respondent also comes close to acknowledging, 9 he failed to take reasonable steps to ensure that Mr. Gilchrist had in fact stepped in to handle the case. He did not discover until almost a year later that Mr. Gilchrist had not appeared at the hearing and that his client's complaint had been dismissed. The fact that there was no substantial prejudice to his client -- other than delay in prosecuting her claim -- because the statute of limitations is tolled during incarceration does not relieve Respondent of the consequences of his failure to represent his client with diligence. Rule 1.4. Rule 1.4(a) requires a lawyer to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Respondent has acknowledged that he violated this disciplinary rule. He did not advise his client that he 9 Respondent stipulated that he "failed to follow up aggressively Mr. Gilchrist's efforts in prosecuting the Complaint of Ms. Kennedy." 14

15 intended to transfer her case to another attorney; because he did not keep himself apprised of the status of the case, he necessarily failed to keep his client informed. Rule 1.16(d). This rule provides in relevant part: In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. The Hearing Committee based its finding that Respondent violated this rule upon its conclusion that it was not reasonable for Respondent to withdraw from the case simply by handing the matter off to other counsel and assuming that other counsel would notify the client of the substitution. We agree with the Hearing Committee's conclusion, but would rest our finding also upon Respondent's failure to follow the applicable rules for withdrawal. Superior Court Rule of Civil Procedure ( Civil Rule ) 101(c) provides in relevant part as follows: (c) Withdrawal of appearance. (1) If a trial date has not been set, an attorney may withdraw the attorney's appearance in a civil action by filing a praecipe signed by the attorney and the attorney's client, noting such withdrawal, provided that another attorney enters or has entered an appearance on behalf of the client at that time. (Emphasis added.) Respondent was not privileged simply to assume that Mr. Gilchrist would take over the case. He was required, both by Rule 1.16(d) and by Civil Rule 101(c), to obtain his client's consent before the case was transferred. Respondent's failure to follow the requirements of Civil Rule 101(c) confirms his violation of Rule 1.16(d) of the Rules of Professional Conduct. Respondent contends that there was insufficient evidence to support a finding that he violated this rule. He bases this assertion on the fact that there was no evidence as to actions taken by Mr. Gilchrist in the case. Exhibits submitted by Bar Counsel and admitted without objection demonstrate that no attorney appeared at the Initial Conference and that the case was 15

16 dismissed. Civil Rule 101(c) required the appropriate papers to be filed prior to Respondent's withdrawal from the case. Since these papers had not been filed, it was Respondent's responsibility to appear at the Initial Conference. In failing to appear, he failed to discharge his obligations under Rule 1.16(d). Rule 8.4(d). This rule provides that it is professional misconduct for a lawyer to: (d) Engage in conduct that seriously interferes with the administration of justice. The Hearing Committee acknowledged that Respondent had failed to comply with Civil Rule 101(c). It concluded, however, that his conduct did not taint the judicial process as in other cases where violations of 8.4(d) were found. As examples, the Hearing Committee cited In re Hopkins, 677 A.2d 55 (D.C. 1996), where respondent failed to take action to protect estate assets from her client's misconduct, and In re Reback, 513 A.2d 226 (D.C. 1986) (en banc), where respondents forged their client's signature to a complaint after the original action had been dismissed for failure to prosecute. The elements of a Rule 8.4(d) violation were set out by the Court in its authoritative opinion in Hopkins. To establish a violation, Bar Counsel must show by clear and convincing evidence that: Id. at Respondent's conduct was improper, i.e., that Respondent either acted or failed to act when she should have; 2. Respondent's conduct bore directly upon the judicial process with respect to an identifiable case or tribunal; and 3. Respondent's conduct tainted the judicial process in more than a de minimis way, i.e., it must have potentially had an impact upon the process to a serious and adverse degree. 16

17 Respondent's conduct here satisfies all the elements set out in Hopkins. It was improper in that it did not comport to Civil Rule 101(c) and Respondent did not appear at the Initial Conference, of which he had notice; it bore directly upon the judicial process with respect to an identifiable case; and it tainted the process in a more than de minimis way. In this regard, his failure to appear resulted in a dismissal of his client's complaint. The judicial process was then burdened by his motion to set aside the dismissal, his appeal from the denial, the remand to the trial court, and the subsequent reinstatement of the appeal, in which Respondent failed to file any supplemental brief. (As seen, the Court nonetheless directed the District of Columbia to file a brief and the Court subsequently issued an opinion affirming the trial court's action.) All this substantially delayed the prosecution of Ms. Kennedy's case. It was dismissed on May 2, 1997 and the Court's order finally affirming the dismissal was entered on March 23, 2000, almost three years later. The fact that the statute of limitations was tolled by Ms. Kennedy's incarceration meant that Respondent's misconduct did not cost her her claim, but it in no way detracts from the delay resulting from Respondent's misconduct. The rule incorporates the case law that had developed under the predecessor DR 1-102(A)(5), which proscribed conduct prejudicial to the administration of justice. Comments 3 and 4 to Rule 8.4(d) refer to types of conduct that have long been held to come within the scope of the rule. The majority of cases have involved a lawyer's failure to cooperate with Bar Counsel. Another example cited in the comments is applicable here: A lawyer's failure to appear in court for a scheduled hearing is another common form of conduct deemed prejudicial to the administration of justice. Comment 4, (citations omitted). 17

18 As noted, the Court has often found violations of Rule 8.4(d) based on a respondent's failure to appear at a court hearing. We review a few examples: 10 In Lewis, 689 A.2d 561, the Court upheld the Board's findings of violations of Rules 1.1(b), 1.3(a) and (b)(1), 1.16(a) and 8.4(d) where respondent effectively abandoned his client. As to Rule 8.4(d), the violation was based on respondent's failure to be available to the Court, including his failure to provide an accurate address to the Court, which resulted in his failure to appear at a scheduled Court hearing. In In re Lyles, 680 A.2d 408 (D.C. 1996) (per curiam), there were two counts under which respondent was charged with failure to appear at a hearing. In the first, where there was a lack of certainty as to whether she had received notice, the Hearing Committee concluded that respondent's failure to appear was not willful, and thus recommended no violation. In the second, there was no doubt that respondent had received notice and unilaterally made the decision that she did not need to appear. There the Hearing Committee found a violation, which was concurred in by the Board, and upheld by the Court. See also In re Delate, 579 A.2d 1177 (D.C. 1990) (D.R (A)(5) violated by failure to appear at hearing, failure to file accounting and failure to respond to Bar Counsel inquiries). The Board's report in In the Matter of W. Edward Thompson, BDN Nos , et al. (no date) is quite instructive here. That case involved a lawyer's failure to appear at hearings in three different cases. As to the first case, respondent's excuse was that there was a conflict between the probation revocation hearing, which he missed, and a hearing in another matter. On February 6, 1981, the probation hearing was set for February 13, On February 9, 1981, at a hearing in 10 The cases are legion where the Court and the Board have found violations based on an attorney's failure to appear at court hearings. 18

19 an Equal Employment Opportunity Commission ( EEOC ) matter attended by an employee of Respondent, a hearing was also set for February 13, Respondent did nothing to resolve this conflict during the work week between February 9 and 12; his defense was that he did not learn of the conflict until the evening of February 12, after the courts had closed. He made efforts to inform the Court on the morning of February 13 that he would not be able to attend the hearing. Finding these efforts too little too late and stating the Respondent was perfectly free to send an employee to stand in at the EEOC hearing, the Board concluded that he had an obligation promptly to determine what had transpired at the EEOC meeting and found that Respondent had engaged in conduct prejudicial to the administration of justice. 11 In a second case, respondent missed a hearing date because of a conflicting date in another case. Here again, respondent failed to take timely action to resolve the conflict and was found to have violated the rule. The third case bears more directly on the matter at hand. There, respondent had failed to appear for a status conference. His defense was that he had sent another attorney to stand in and that he should not be held responsible for the stand-in's failure to attend. The Board agreed in part: Id. at 13. The lawyer who asks another to stand in for him at a court appearance can hardly be held at fault if, completely unbeknownst to the requesting lawyer, the second lawyer fails to appear. The first lawyer could not be held for the second lawyer's failure to appear since there would be no willfulness in the conduct and therefore no sanctionable violation of the Code of Professional Responsibility. 11 Respondent also missed the next scheduled revocation hearing. The Hearing Committee rejected his explanation, which was that he had lost his appointment book. 19

20 Due to previous incidents of unreliability on the part of the stand-in attorney, however, the Board concluded that Respondent's failure to appear was conduct prejudicial to the administration of justice. Referring to the evidence of unreliability, the Board explained: Id. at 17. This being the state of the evidence, and in view of our circumscribed standard of reviewing a hearing committee's findings of fact, Matter of Smith, 403 A.2d 296, 302 (D.C.C.A. 1979), we find that there is substantial evidence in the record as a whole that would allow a reasonable mind to find clear and convincing evidence that respondent was not justified in relying upon [the stand-in's] promise to appear at the July status hearing. Respondent's conduct was therefore prejudicial to the administration of justice. In urging that a violation be found here, Bar Counsel emphasizes In re Robinson, 635 A.2d 352 (D.C. 1993) (per curiam). There, respondent failed to appear at a status hearing for her client in a misdemeanor criminal case. Her pet had become ill and she had taken it to a clinic. She so advised the court and had been instructed that the hearing would be held in the early afternoon. She arrived at the court 35 minutes after the appointed time for the rescheduled hearing. The Trial Court rejected her excuse and held her in contempt. As the Board observed in that case, quoting the earlier decision in In re Alexander, 466 A.2d 447, 450 (D.C. 1983): The Court of Appeals has expressed itself in no uncertain terms with respect to the seriousness of an unexcused failure by an attorney to appear at a scheduled proceeding noting that such behavior causes a loss of valuable time to the Court, its personnel, and to every other participant in the trial. Id. at 354. The Board concluded that respondent's personal problems were [not] such as to justify her failure to appear in a timely manner as ordered by Judge Taylor. Id. The similarity between the facts in Robinson and this case are apparent. In both cases, the respondents had notice of the hearing and failed to appear. In both cases, the excuses were rejected by the court that had scheduled the hearing. 20

21 Bar Counsel also cites Alexander, 466 A.2d 447. There, without clearance from the client, respondent sent an associate, whom he failed to prepare, to cover a hearing. Finding a violation, the Board noted that respondent had not advised his client of his intent to send a substitute and had never obtained the client's consent. Similarly to Alexander, Respondent here had not taken the steps required to assure the presence of a qualified stand-in. It is clear from the record that Respondent knew that the Initial Conference was set for May 7, but there is no evidence that he had actual knowledge that substitute counsel would not appear. 12 In Hopkins, the Court rejected the Board's conclusion that a knowing failure to obey a specific court procedure is a required element of Rule 8.4(d). 677 A.2d at 59 (emphasis added). The Court observed that it had declined to adopt a scienter requirement for former DR 1-102(A)(5), noting that conduct can be prejudicial to the administration of justice whether... reckless or somewhat less blameworthy. Id. at 60 (emphasis added). The Court suggested application of a negligence standard when it stated that a lawyer may violate Rule 8.4(d) simply because, considering all the circumstances in a given situation, the attorney should know that he or she would reasonably be expected to act in such a way as to avert any serious interference with the administration of justice. Id. at 61 (emphasis added). Indeed, in Hopkins, the misconduct itself arguably resulted from negligence, in that the respondent had failed to take action when, based on the record, she should have known that her client had depleted funds in an estate for which he was the personal representative. 12 Nor is there evidence that Respondent had actual knowledge of the requirements of Civil Rule 101(c). We must, however, presume that Respondent had knowledge of the requirements of Civil Rule 101(c). Cf., In re Lieber, 442 A.2d 153 (1982) (failure to understand obligations as attorney cited as factor supporting substantial suspension). 21

22 Based on Hopkins and the long line of failure-to-appear cases, it must be concluded that Respondent violated Rule 8.4(d). He had actual notice of the Initial Conference; he sought to transfer the case to new counsel but did not comply with the applicable procedures, nor did he take follow-up action to ensure that new counsel had appeared. As found by the Hearing Committee, he was not free just to assume that new counsel would appear in his stead. HC Rpt. at 8. In this regard, the case is somewhat like Thompson, where the Hearing Committee and the Board concluded that respondent was not entitled to rely on the stand-in lawyer. We note, however, that this case differs from Thompson in two ways. First, Respondent was seeking not to send a stand-in attorney to a hearing; he was seeking to transfer the case to new counsel, a process that is governed by Civil Rule 101(c) and requires client consent. We are by no means suggesting that a Rule 8.4(d) violation can be established simply by demonstrating that a stand-in attorney did not show up at a hearing. What is important here is that the Respondent failed to take reasonable steps to ensure that his client had consented to the transfer of her case to another attorney. Second, even after having been put on notice by unanswered telephone calls, Respondent made no inquiries for 11 months as to what happened at the Initial Conference. The Court's very recent decision in In re Hallmark, 831 A.2d 366 (D.C. 2003) contains language raising the question whether Rule 8.4(d) reaches to conduct that is negligent rather than intentional or reckless. In Hallmark, the Court held that the submission of an untimely and inaccurate voucher for payment under the Criminal Justice Act did not constitute a violation of Rule 8.4(d). The Board had found that this conduct did not affect the administration of justice in a more than de minimis way. The Court stated: Generally, we have found a Rule 8.4(d) violation upon a showing of more egregious conduct than the one at bar. (citations omitted).... Contrasting this type of conduct, where there is intentional disregard for the effect that an action may have on judicial proceedings or the client's 22

23 cause, what we have here is a deficient request for compensation -- which the Hearing Committee found to be the result of negligence, not fraud. We do not doubt that respondent's conduct placed an unnecessary burden on the administrative processes of the Superior Court and on the presiding judge, but her untimely submission of an obviously deficient voucher did not seriously and adversely affect the administration of justice, or her client. Id. at 375. The Court also noted that respondent's negligence had operated to her own detriment because it resulted in a denial of compensation. We do not read the Court's language as changing the Rule 8.4(d) standards in a way that would militate against finding a Rule 8.4(d) violation here. The Court's comments do not purport to alter the standards set out in Hopkins, which do not reflect a requirement of intentionality. As set out above, in Hopkins, the Court noted that it had previously found violations where conduct was not intentional or reckless but was somewhat less blameworthy. The record establishes that Respondent had not obtained Ms. Kennedy's consent to transfer the case to another lawyer. Accordingly, Respondent knew he had not complied with Civil Rule 101(c). In addition, he did not take reasonable steps to assure that Mr. Gilchrist had obtained client consent as required by Civil Rule 101(c) and intended to appear at the Initial Conference. And then he failed later to make inquiries as to what happened at the Initial Conference, notwithstanding the fact that, as stated in his letter of June 2, 1997 to Mr. Gilchrist, he had left several messages seeking information on the status of the case. As noted, the Hearing Committee found that it was not reasonable for a lawyer to withdraw from a case simply by passing the matter to other counsel and assuming that the client would be notified. HC Rpt. at 9. Just as certainly, Respondent's conduct had an effect on the administration of justice, as that concept has been developed in the Court's decisions in failure-to-appear cases. His failure to appear at the Initial Conference caused his client's case to be dismissed and resulted in his 23

24 motion for relief, the trial court's ruling thereon and the subsequent appeal process. Again, the Hallmark case is different, in that the failure to properly apply for CJA compensation had no effect on the processing of any case. Finally, the fact that Respondent's conduct violated Rules 1.3(a) and (c), 1.4 and 1.16(d) does not argue for a finding that it did not violate Rule 8.4(d). The rules at issue in this case address different lawyer responsibilities: Rules 1.3, 1.4 and 1.16(d) speak to a lawyer's responsibilities to his or her client; Rule 8.4(d) speaks to a lawyer's broader responsibility to the court and to the administration of justice. It has often been held that misconduct can violate more than one rule. In re Drew, 693 A.2d 1127, 1132 (D.C. 1997) (per curiam). As one example, the respondent in In re Lewis, 689 A.2d 561 (D.C. 1997) (per curiam) was found to have violated multiple rules in addition to Rule 8.4(d) (or its predecessor). See also In re Banks, 577 A.2d 316 (D.C. 1990) (per curiam), (neglect of client requiring appointment of new counsel violated Rule 8.4(d) as well as Rules 1.3(a), 1.3(c) and 1.4(a)). For all of the foregoing reasons, we recommend that the Court find a violation of Rule 8.4(d). IV. Sanction Recommendation The Hearing Committee has recommended public censure by the Court as well as a requirement to take a course in professional responsibility. At the Hearing Committee, both Bar Counsel and Respondent recommended public censure. In their post-hearing briefs, both changed their position. Bar Counsel sought the additional requirement that Respondent take a CLE course, and Respondent contended that no sanction should be imposed. 24

25 In determining the appropriate sanction, the Court has considered the seriousness of the misconduct and sanctions for similar misconduct, 13 prior discipline, prejudice to the client, violation of other disciplinary rules, whether the conduct involved dishonesty, the respondent's attitude, and circumstances in aggravation and/or mitigation. See In re Slattery, 767 A.2d 203, (D.C. 2001); In re McLain, 671 A.2d 951, 954 (D.C. 1996); In re Jackson, 650 A.2d 675, 678 (D.C. 1994) (per curiam); In re Hill, 619 A.2d 936, 939 (D.C. 1993) (per curiam); see also In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc). We treat these factors below: a. Seriousness of misconduct and sanctions for similar misconduct. This matter involves neglect in a single case, including a failure to appear in court that was deemed to be unexcused by the trial court and affirmed on appeal. His misconduct resulted in dismissal of his client's complaint. Respondent made no inquiries about the matter for eleven months. Because his client was incarcerated, the statute of limitations was tolled, and therefore the client's only prejudice was delay in prosecution of her claim. Censure, as recommended by the Hearing Committee, has often been imposed in neglect cases, including cases which also involve violations of Rule 8.4(d) or its predecessor. 14 Bar Counsel cites several of these cases, i.e., In re Gordon, 747 A.2d 1188 (D.C. 2000) (per curiam) (attorney censured for failing to represent client zealously and diligently in violation of Rule 1.3(a)); In re Bland, 714 A.2d 787 D.C. 1998) (per curiam) (attorney censured for neglecting client's matter); In re Hill, 619 A.2d 936 (D.C. 1993) (per curiam) (attorney censured for neglect 13 The Board has a duty not to recommend dispositions that would foster a tendency towards inconsistent dispositions for comparable conduct. D.C. Bar R. XI, 9(g)(1). 14 Suspension has been imposed in cases of serious neglect, particularly where there is dishonesty, prior discipline or other aggravating circumstances. See, e.g., Starnes, 829 A.2d 488; In re Koven, 797 A.2d 1043 (D.C. 2002) (per curiam); Lewis, 689 A.2d 561; Banks, 577 A.2d 316; In re Dory, 552 A.2d 518 (D.C. 1989) (per curiam); Chisholm, 679 A.2d 495; Delate, 579 A.2d 1177 (six-month suspension for neglect and conduct prejudicial to administration of justice in two probate cases); In re Lyles, 680 A.2d 408 (D.C. 1996) (per curiam) (six-month suspension plus fitness for conduct interfering with administration of justice and serious neglect of four clients). Clearly, the cases in which suspension has been imposed involve more serious misconduct than present here. 25

26 and conduct prejudicial to the administration of justice); In re Jones, 521 A.2d 1119 (D.C. 1986) (attorney who had received prior informal admonitions, censured for neglect, conduct prejudicial to the administration of justice, and failure to maintain complete records); In re Banks, 461 A.2d 1038 (D.C. 1983) (per curiam) (attorney who had received prior informal admonition censured for five separate acts of neglect). See also In re Shelnutt, 719 A.2d 96 (D.C. 1998) (per curiam) (public censure for neglect of one client). Many of these cases involved more serious misconduct than present here. As the Court stated in Reback, 513 A.2d at 232, a first instance of neglect, of itself, normally warrants only a reprimand or censure. The Court has approved reprimand or informal admonition in instances of neglect. In re Holdmann, No. 00-BG-1214 (D.C. Nov. 6, 2003); (neglect; public censure) In re Taylor, 511 A.2d 386 (D.C. 1986) (per curiam) (neglect only; Board reprimand plus restitution); Shelnutt, 719 A.2d 96 (neglect; public censure). Hill is also instructive. There, respondent had failed to meet court deadlines in connection with an appeal of a CJA case, resulting in the court's appointing new counsel, and also failed for a year to respond to inquiries of Bar Counsel. In recommending censure, the Board noted: Attorneys who have been censured by the Court for neglect and conduct prejudicial to the administration of justice have also engaged in other misconduct. In re Margulies, supra [ (D.C. App. Jan. 26, 1989)] (also found to have engaged in dishonest conduct); In re Jones, 521 A.2d 1119 (D.C. 1986) (also failed to maintain complete client records and prior discipline). Generally, the Board would consider such misconduct more serious than that of Respondent and normally recommend a Board reprimand. Compare In re Robertson, 608 A.2d 756 (D.C. 1992) (public censure for neglect and conduct prejudicial to the administration of justice for failing to file brief and to respond to court orders, and mitigating factors). Because of Respondent's year-long non-response to Bar Counsel, which the Board considers an aggravating factor, the Board believes the sanction should be more stringent. 26