In re Cope, M-58-80.

• Decision Date: 24 January 1983
• Docket Number: No. M-58-80.,M-58-80.
• Citation: 455 A.2d 1357
• Parties: In re Donald E. COPE, a Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

Page 1357

455 A.2d 1357

In re Donald E. COPE, a Member of the Bar of the District of Columbia Court of Appeals.

No. M-58-80.

District of Columbia Court of Appeals.

Argued February 10, 1982.

Decided January 24, 1983.

Joseph L. Mayer, Washington, D.C., for petitioner, Bd. on Professional Responsibility.

Charles Kubinski, Washington, D.C., for respondent.

Before KERN, NEBEKER and FERREN, Associate Judges.

KERN, Associate Judge:

The Board on Professional Responsibility has recommended that respondent, a practitioner for some 20 years with no prior disciplinary record so far as we are advised, be suspended from the practice of law for six months (a) for his neglectful conduct some four years ago in two criminal cases on appeal to this court, and (b) for his failure to cooperate in the investigation initiated by Bar Counsel as an aftermath of certain occurrences in this court during the two appeals.

The Board adopted the findings of fact of its Hearing Committee entered some six months after the hearing at which Bar Counsel and respondent had entered into a comprehensive stipulation of facts. Thus, the essential facts are not disputed. The background of the first count of the charges against respondent was that in 1977 he had represented one of two defendants in a robbery trial which ended in a guilty verdict. Respondent (and the attorney for the codefendant) noted an appeal on behalf of each of the two defendants. Respondent was appointed by this court to represent on appeal the defendant he had represented at trial. Respondent filed a brief 33 days after the date it was due without explanation, although he was directed to explain why the brief had been untimely filed. This court affirmed the judgment of conviction in July 1978 by an unpublished memorandum opinion and judgment.

The basis of the first count against respondent was his failure to communicate during the pendency of the appeal with the defendant he was representing. While he promptly advised his client of the fact that an appeal had been noted, he thereafter failed to respond to the client's inquiries from prison about the status of the appeal.¹ It was left to the Clerk of this court, responding to the appellant's letters, to keep him informed of the appeal's progress until its final determination adverse to him. The Clerk during this time transmitted a directive from a judge of this court to the respondent to enter into and maintain communication with the appellant. Respondent did not heed such directive.

Ultimately, by direction of a judge of this court, the Clerk forwarded his correspondence with the appellant to Bar Counsel who in August 1978 requested from respondent a statement on the matter of failing to respond to the client's inquiries during the appeal and also failing to explain why his brief was 33 days late.² When the respondent finally telephoned Bar Counsel in November and was told of the latter's concerns he declined to file a written statement. Whereupon Bar Counsel issued a subpoena directing him to appear with his files and respondent made his appearance (without the files) on November 27, 1978.

Almost one year later, in October 1979, a formal complaint was instituted against respondent. Respondent at the hearing held in February 1980 by the Hearing Committee acknowledged that he had been neglectful in not communicating with his client and in not abiding by the directives from a judge of this court (1) to explain why he had filed his brief 33 days out of time and (2) to maintain communication with the appellant.

In mitigation, he asserted that communicating with the appellant "would not have helped one iota" in the presentation of the appeal since the ground for such appeal was the allegedly improper and prejudicial summation by the prosecutor to the jury.³ Respondent noted that his co-counsel on appeal (and at trial) had visited the other appellant who was also incarcerated and "would tell him what was going on." Respondent appeared to assume that the codefendants were in touch with each other at their place of incarceration.

As to his lack of response to Bar Counsel's request for explanation and information, respondent was of opinion that his representation on appeal had been effective and was therefore not a proper subject for review by Bar Counsel. Respondent also asserted that the files relating to the appellant were privileged and hence not properly subject to reach by the subpoena of Bar Counsel.

The Hearing Committee, in rendering its findings six months later, did not address any of the points raised by respondent in mitigation of his admitted neglect in not keeping his client informed during the pendency of the appeal. Rather, the Committee found his failure to communicate with his client constituted neglect of a legal matter entrusted to him. The Committee characterized his failure to explain why he had filed his brief 33 days later as conduct in which "he had recklessly disregarded a ruling of the District of Columbia Court of Appeals" (emphasis added); and, the Committee found that respondent had failed to produce his files pursuant to Bar Counsel's subpoena (without addressing respondent's point that the files were privileged until such time as the client charged ineffective assistance of counsel) and had failed to reply to repeated inquiries from Bar Counsel, all to the prejudice of the administration of justice.

The background of the second count of the charges against respondent was that pursuant to a fee agreement he represented a defendant in the trial court who entered pleas of guilty in two separate cases (one of them a robbery case) before two different judges.⁴ The judge in the first case found appellant would benefit from treatment under the Federal Youth Correction Act but

the judge in the second case found he would not so benefit and sentenced him to imprisonment. Respondent requested the second judge to reconsider but such motion was denied. Respondent then noted an appeal on the ground that the trial judge in the second case had abused his discretion in imposing an adult sentence when another judge had already found the appellant susceptible to Youth Act treatment.

The basis of the second count against respondent was his conduct subsequent to the noting of the appeal in the above case. Although respondent requested and was granted an extension of time until December 5, 1977, in which to file his brief, he failed to meet that due date. Two days before Christmas, a judge of this court directed respondent to file either an appropriate motion or a statement explaining why he had failed to file his brief. Within the time allotted by this directive, respondent filed a motion to remand the case to the trial court. This court denied the motion some four months later.

In June 1978 a judge of this court issued two separate directives: first, directing respondent to explain why he had filed no brief and second, directing respondent to show cause why he should not be replaced as counsel for the appellant and the matter referred to the Board on Professional Responsibility. In July, respondent filed a motion to withdraw in which he advised that in his opinion the appeal was frivolous. Thereupon, an order of this court was entered vacating respondent's appointment as counsel.⁵ Thereafter, the matter was referred to Bar Counsel who sought from respondent a written report and his files in this case. Appellant, taking the same position he had in the first case, declined to make his files available.

Respondent asserted in his defense at the hearing by the Committee on this count that the defendant had been aware that once he entered a plea of guilty before the trial court all grounds for appeal were waived, with the exception of a challenge to the legality of the sentence. Since the sentencing judge's finding of "no benefit" was a discretionary matter, respondent deemed the appeal to lack a colorable claim, although he had noted such appeal as a way of protecting his client. In respondent's view, only the trial court could vacate its sentence and order Youth Act treatment. Therefore, respondent asserted that he had moved this court to remand the case so that he could request the trial judge to reconsider his imposition of an adult sentence. Respondent acknowledged neglecting this court by failing to explain with a supporting memorandum why he had filed a motion to remand and by neglecting to explain to his client the actions he was taking. However, respondent asserted that his representation under the circumstances had been effective.

The Hearing Committee's ultimate findings on this count, made in its report of August 1980, were that respondent had neglected the case by failing to advise his client of his own "perceptions" as counsel and that he had damaged his client by failure to "properly present" the appeal. In addition, the Hearing Committee found that respondent had disregarded "a ruling of the District of Columbia Court of Appeals" and engaged in conduct prejudicial to the administration of justice by failing to cooperate with Bar Counsel and refusing to turn over his case file in response to Bar Counsel's subpoena.

The Hearing Committee recommended suspension for a year and a day but the Board reduced the proposed sanction to six months suspension. Respondent does not challenge the findings of fact entered by the Committee and adopted by the Board. Rather, he challenges the failure of the Committee and the Board to deal with the mitigating factors he advanced in his own defense and he also argues the undue severity of the sanction in view of his record of pro bono work and the absence of any prior disciplinary matters on his record.

We must accept the Board's recommended disposition unless it "would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted." Rule XI, § 7(3) of the Rules of this Court Governing the Bar of the District of...