In re Mance, 16–BG–154

• Decision Date: 26 October 2017
• Docket Number: No. 16–BG–154,16–BG–154
• Citation: 171 A.3d 1133
• Parties: IN RE Robert W. MANCE, III, Petitioner. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 285379)
• Court: D.C. Court of Appeals

171 A.3d 1133

IN RE Robert W. MANCE, III, Petitioner.

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 285379)

No. 16–BG–154

District of Columbia Court of Appeals.

Argued December 7, 2016
Decided October 26, 2017

Wendell C. Robinson, Washington, DC, for petitioner.

Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief, for respondent.

Before Thompson and Beckwith, Associate Judges, and Reid, Senior Judge.

Thompson, Associate Judge:

On January 26, 2012, this court imposed a negotiated disciplinary sanction¹ on petitioner Robert W. Mance III, suspending him from the practice of law in this jurisdiction for six months and conditioning his reinstatement upon proof of fitness to practice law and payment of restitution to certain clients. See In re Mance, 35 A.3d 1125, 1127 (D.C. 2012). The discipline was based on three matters, involving complainants Leonard Garrett, Wilmer Riley, and Sedley Randolph. As the Hearing Committee found, Mr. Mance "admitted to multiple violations of the disciplinary rules arising from his neglect of ... client matters" in those cases.²

171 A.3d 1136

On June 26, 2013, Mr. Mance petitioned for reinstatement. In opposing the petition, Bar Counsel (now known as "Disciplinary Counsel," the term by which we hereafter refer to the Office) filed a proffer regarding alleged misconduct involving two additional complainants, Steven Swann and Lawrence Hemphill. Disciplinary Counsel had previously dismissed their complaints as part of the negotiated-discipline agreement, or as a result of Mr. Mance's suspension, while reserving the right to present evidence about them should Mr. Mance seek reinstatement.

Hearing Committee Number Six held a hearing on Mr. Mance's reinstatement petition on May 2, 2014, and issued its report and recommendation on February 22, 2016. Although the Hearing Committee found that Mr. Mance testified credibly, it recommended denial of his petition. There followed this matter, Mr. Mance's petition to this court for reinstatement. For the reasons that follow, we grant the petition, with conditions.

I.

"When [Disciplinary] Counsel contests a [reinstatement] petition, ... a hearing is convened after which the Hearing Committee submits a report of its findings and recommendations to this court for a final disposition." In re Sabo, 49 A.3d 1219, 1222 (D.C. 2012). "[T]he recommendation of the [Hearing Committee] is only a recommendation," id. at 1224 (internal quotation marks omitted), however, and even where—as here—we are presented with a Hearing Committee report that reflects "commend[able]" and "thorough consideration," id. at 1234, and a "conscientious ... recommendation,"³ "the determination of fitness to resume the practice of law rests entirely with this court." Id. at 1224 (internal quotation marks omitted). In exercising our "ultimate authority to decide whether to grant a petition for reinstatement," id., we "place great weight on the recommendations of the ... Hearing Committee," id. (internal quotation marks omitted), and we accept the Hearing Committee's findings of fact "unless they are unsupported by substantial evidence of record." In re Mba–Jonas, 118 A.3d 785, 787 (D.C. 2015) (internal quotation marks omitted).

A petitioner seeking reinstatement bears the burden of proof to "demonstrate by clear and convincing evidence that he ... is fit to resume the practice of law." In re Sabo, 49 A.3d at 1223 (internal quotation marks omitted); see also D.C. Bar R. XI, § 16 (d)(1).⁴ Proof of fitness requires a demonstration " ‘(a) [t]hat the attorney has the moral qualifications, competency, and learning in law required for readmission; and (b) [t]hat the resumption of the practice of law by the attorney will not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest.’ " In re Daniel, 135 A.3d 796, 797 n.2 (D.C. 2016) (quoting D.C. Bar R. XI,

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§ 16 (d)(1)(a)-(b)). The following factors are to be considered in a determination of whether the attorney has made the required showing:

(1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney's present character; and (5) the attorney's present qualifications and competence to practice law.

In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985).

II.

We begin our analysis by briefly describing "the nature and circumstances of the misconduct for which the attorney was disciplined," id., and the additional misconduct the Hearing Committee considered. In the Garrett matter (Bar Docket No. 2009–D247), Mr. Mance, who was representing Mr. Garrett in a civil suit, failed to file a brief on Mr. Garrett's behalf or to ask for an extension of time, which resulted in the dismissal of the case for want of prosecution. See In re Mance, 35 A.3d at 1126. After Mr. Garrett filed a complaint with Disciplinary Counsel, Mr. Garrett met with Mr. Mance, at Mr. Mance's request, and entered into a written agreement whereby Mr. Mance agreed to pay him $4,500 (the retainer he had paid) plus an additional $15,000 as settlement of "any issues or differences between them." Id. (internal quotation marks omitted). Mr. Mance did not advise Mr. Garrett to obtain the advice of outside counsel and failed to provide sufficient information for Mr. Garrett to provide informed consent. Id. Thereafter, Mr. Mance made two payments to Mr. Garrett that amounted to $900 and then ceased payment (until, as discussed below, after he had petitioned for reinstatement). Id.

The Riley matter (Bar Docket No. 2009–D369) involved Mr. Mance's failure, despite a court order, to produce documents (which Mr. Riley had turned over to him) in response to a request for production of documents and an order compelling production. Id. The omission led the court to impose sanctions, which included an order precluding Mr. Riley from testifying at trial, presenting exhibits at trial, and presenting evidence as to damages. Id. Mr. Mance did not file a motion to vacate or reconsider the court's order, and instead, after failing to respond to opposing counsel's motion to dismiss or in the alternative for summary judgment, represented Mr. Riley on appeal. Id. Mr. Mance did not advise Mr. Riley to seek outside counsel even though the issue on appeal involved his own failure to act on Mr. Riley's behalf. Id.

In the Randolph matter (Bar Docket No. 2010–D025), after representing Mr. Randolph in his criminal case, Mr. Mance failed to respond to requests by Mr. Randolph for his case materials, forwarding the file only after Disciplinary Counsel got involved. Id. In addition, Mr. Mance's first attempt at forwarding the file failed because he had failed to ascertain the rules of mailing packages to the federal correctional center where Mr. Randolph was incarcerated.

Regarding the Swann matter (Bar Docket No. 2011–D219),⁵ Disciplinary Counsel proffered that Mr. Mance filed on

171 A.3d 1138

Mr. Swann's behalf a petition for review of an adverse decision by the Office of Employee Appeals but failed to name and serve the proper respondent, timely file the petition, and properly file an opposition to a motion to dismiss. Mr. Mance also noted an appeal from dismissal of the case, even though he had a conflict of interest in continuing to represent Mr. Swann.

Regarding the Hemphill matter (Bar Docket No. 2011–D398), Disciplinary Counsel proffered that Mr. Mance, who had represented Mr. Hemphill in a deposition by the United States Attorney's Office, agreed to write a letter on Mr. Hemphill's behalf explaining to the Assistant United States Attorney why it would be a hardship on Mr. Hemphill to have additional funds seized from a pension owned by his wife. Mr. Mance acknowledges that he failed to communicate with Mr. Hemphill regarding the status of the letter.

As the Hearing Committee found, the foregoing instances of misconduct "involved a consistent pattern of neglect, including the failure to communicate with clients and to comply with multiple court orders, and two instances of conflict of interest." As the Hearing Committee also noted, Mr. Mance has a history of discipline by this court, having received informal admonitions in 1996 and 2000, a thirty-day stayed suspension in 2005, and a public censure in 2009. The 1996 and 2000 informal admonitions were for failing to provide a written retainer agreement as required by Rule 1.15 (b). See In re Mance, 980 A.2d 1196, 1208 (D.C. 2009). The 2005 stayed suspension and period of probation were for Mr. Mance's filing of an untimely notice of appeal in his client's criminal case, neglect in failing to pursue a claim that some of the offenses of which the client was convicted merged, failing to communicate with the client about the appeal, and delay in withdrawing from the...