In re Hitselberger

• Decision Date: 26 October 2000
• Docket Number: No. 99-BG-57.,99-BG-57.
• Citation: 761 A.2d 27
• Parties: In re Mykel HITSELBERGER, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

761 A.2d 27

In re Mykel HITSELBERGER, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

No. 99-BG-57.

District of Columbia Court of Appeals.

Submitted September 28, 2000.

Decided October 26, 2000.

Before TERRY and WASHINGTON, Associate Judges, and NEWMAN, Senior Judge.

PER CURIAM:

On December 2, 1998, respondent Mykel Hitselberger was disciplined in Maryland for violating eight disciplinary rules relating to two separate acts of neglect of client matters.¹ The Maryland Court of Appeals imposed an "indefinite suspension" on respondent.

On February 3, 1999, this court suspended Hitselberger from the practice of law in the District of Columbia, and directed the Board on Professional Responsibility ("Board") to submit its recommendation as to the appropriate discipline to be imposed in this jurisdiction. On December 2, 1999, the Board issued its Report and Recommendation, which is attached hereto and made a part hereof. The Board recommended that Hitselberger be suspended for sixty days and then reinstated only upon a showing of fitness. Neither Bar Counsel nor Hitselberger has filed an exception to the Board's recommendation.

We are required to adopt the recommended disposition of the Board "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9(g)(1). "The deferential standard mandated by this provision becomes even more deferential where, as here, the attorney [and Bar Counsel] ha[ve both] failed to contest the proposed sanction." In re Dietz, 675 A.2d 33, 34 (D.C.1996) (quoting In re Goldsborough, 654 A.2d 1285, 1288 (D.C.1995)). The sanction recommended by the Board is not inconsistent with sanctions that this court has imposed for similar disciplinary violations. See Dietz, 675 A.2d at 36; In re Aldridge, 624 A.2d 1210 (D.C. 1993). Thus, given the lack of any opposition and there appearing no reason not to accept the recommendation of the Board with the qualification set forth by Bar Counsel, it is

ORDERED that Mykel Hitselberger is suspended from the practice of law in the District of Columbia for a period of sixty days, said suspension to commence upon his filing of an appropriate affidavit in compliance with D.C. Bar R. XI, § 14. See In re Robertson, 618 A.2d 720, 726 (D.C.1993) (citing D.C. Bar R. XI, § 16(c)).² Furthermore, reinstatement of Mykel Hitselberger is conditioned upon proof of fitness to practice law in the District of Columbia.

So ordered.

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of:

MYKEL HITSELBERGER, Respondent.

Bar Docket No. 534-98

REPORT AND RECOMMENDATION OF THE

BOARD ON PROFESSIONAL RESPONSIBILITY

Respondent is a member of the Bar of the District of Columbia Court of Appeals (the "Court"), having been admitted on December 19, 1986. He also is admitted to practice before the Court of Appeals of Maryland (the "Maryland Court"). On December 2, 1998, the Maryland Court entered an order indefinitely suspending Respondent from the practice of law.

Bar Counsel reported the Maryland Court's order of suspension to the Court. On February 3, 1999, the Court entered an order suspending Respondent pursuant to D.C.App. R. XI, § 11(d) and directed the Board on Professional Responsibility (the "Board") to recommend whether reciprocal discipline should be imposed. In re Hitselberger, No. 99-BG-57. For the reasons set forth below, the Board recommends that a reciprocal 60-day suspension with fitness be imposed on Respondent.

The Maryland Misconduct

Two complaints were filed against Respondent in Maryland. In the first complaint, the Pyles matter, Respondent was found to have violated four disciplinary rules during his representation of Maryland Trooper First Class John Pyles, pursuant to a retainer with the Maryland Troopers Association. Specifically, Respondent was retained in October 1994 to fight an employment action filed by the Maryland State Police. Respondent filed a Motion to Dismiss the petition as time-barred under a one year statute of limitations rule. When the Court ruled against Pyles' motion on January 3, 1996, Respondent failed to notify his client of the ruling. On January 17, 1996, when Pyles learned of the Court's ruling, he sought an explanation from Respondent. They met on January 24, 1996 and agreed Respondent would appeal the ruling. On March 18, 1996, Pyles called about the appeal and Respondent told him the appeal had been filed. On checking with the Circuit Court the next day, Pyles learned the appeal had not been filed. He again called Respondent and asked for copies of the filing. When Pyles did not receive a response from Respondent, he enlisted the assistance of the union lodge president. Called before an April 1996 meeting of the Executive Board of the Maryland Troopers Association, Respondent again maintained that he had filed the appeal and added that he had written a check for the filing fee. The Executive Board demanded proof of the filing which Respondent said he would produce. When Respondent did not produce his proof by August 1996, Pyles reported Respondent to the Attorney Grievance Committee which assigned an investigator to Respondent's case. Although Respondent met with the investigator, Respondent did not provide the investigator with a copy of the canceled check that Respondent purportedly used to file the appeal.

Respondent did not appear at his Maryland inquiry hearing. In Respondent's absence, the trial court heard testimony from Pyles and from the investigator. The investigator testified that Respondent never produced the requested proof concerning the check that Respondent purportedly had written to file the appeal. Instead, Respondent provided only a series of excuses for why his files and his checks were not available. The Maryland Court concluded that Respondent's conduct violated Rules 1.1 (competence), 1.3 (diligence) 1.4 (communications) and 8.1 (failure to cooperate with Bar Counsel).

In the second complaint, the Lee matter, the Maryland Court found that Respondent had violated Rules 1.1 (competence), 1.3 (diligence), 8.4 (misconduct) and 8.1 (failure to respond timely to Bar Counsel) when he performed no work for a six-year period after being appointed as temporary successor guardian for the property of Kenneth Wayne Lee on March 23, 1990. Respondent ignored the interim inquiries of the Trust Clerk and responded late to the order to show cause issued by the Maryland Court on November 14, 1996, to the Court's orders for supplemental reports, and to Bar Counsel's inquiries.

Respondent was personally served with the Attorney Grievance Commission's Petition for Disciplinary Action, Interrogatories and Requests for Admissions of Fact and Genuineness of Documents, but he filed no answer or response. An Order of Default was entered against him. Respondent did not appear at the fact-finding hearing before the Honorable Herbert L. Rollins of the Circuit Court of Frederick County. Judge Rollins filed Findings of Fact and Conclusions of Law based on the testimony of Trooper Pyles and the Bar's investigator.

The Attorney Grievance Commission did not take exception to the hearing court's report and urged the Maryland Court to impose an indefinite suspension on Respondent. On December 2, 1998, the Maryland Court adopted the hearing court's report and indefinitely suspended Respondent for violating eight disciplinary rules in the two disciplinary actions. The Maryland Court conditioned the termination of Respondent's suspension on his completion of a course in professional responsibility, completion of twelve hours of continuing legal education courses in each of the first two years following his reinstatement, and engaging, at Respondent's expense an attorney-monitor for two years who would submit periodic reports to Maryland Bar Counsel.

Respondent did not participate in this proceeding before the Board. Bar Counsel maintains that none of the five D.C.App. R. XI, § 11(c) exceptions apply in this case.³ Recognizing that the hearing court and the Maryland Court based their findings in part on an Order of Default, Bar Counsel argues that Maryland's default procedures do not offend the heightened scrutiny accorded reciprocal default cases under Rule XI, § 11 as interpreted in In re Pearson, 628 A.2d 94 (D.C. 1993), where the respondent who failed to comply with Maryland's procedural rules proffered a substantial defense to the allegations of misconduct before the Maryland Court imposed final discipline. Bar Counsel argues that in this case, unlike Pearson, Respondent has proffered no defense to the allegations of misconduct nor has he disputed the findings.

Bar Counsel urges the Board to recommend a 60-day suspension with fitness, citing In re Dietz, 675 A.2d 33 (D.C. 1996)(reciprocal suspension of 60 days with fitness requirement based on an indefinite suspension in Maryland for failure to act with diligence, communicate with client, respond to demands for information from disciplinary authorities or to hold funds in separate escrow account) and In re Aldridge, 624 A.2d 1210 (D.C.1993)(reciprocal suspension of 60 days without fitness requirement, based on Maryland indefinite suspension for lack of competence and diligence and failure to communicate with client; attorney summarily reinstated in Maryland prior to Court action here). Bar Counsel also urges the Board to include a fitness requirement because Respondent did not participate in the Maryland disciplinary proceedings despite receiving notice and having an opportunity to do so. Cf. In re Lilly, 699 A.2d 1135 (D.C. 1997)(30-day suspension with reinstatement conditioned on compliance with Bar Counsel's request for information); In re Lockie, 649 A.2d 546 (D.C.1994) (30-day suspension with fitness for failure to cooperate with investigation of charges of ethical misconduct).

Analysis

Reciprocal...