In re Peek, 89-128.

• Citation: 565 A.2d 627
• Decision Date: 03 November 1989
• Docket Number: No. 89-128.,89-128.
• Parties: In re Harold B. PEEK, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: Court of Appeals of Columbia District

Page 627

565 A.2d 627

In re Harold B. PEEK, A Member of the Bar of the District of Columbia Court of Appeals.

No. 89-128.

District of Columbia Court of Appeals.

Argued September 7, 1989.

Decided November 3, 1989.

Elizabeth A. Herman, Office of Bar Counsel, Baltimore, Md., for the Bd. on Professional Responsibility, majority report.

Joan L. Goldfrank, Executive Atty., for the Bd, on Professional Responsibility, minority report.

John W. Karr, Washington, D.C. for respondent.

Before FERREN and FARRELL, Associate Judges, and GALLAGHER, Senior Judge.

FERREN, Associate Judge:

This disciplinary proceeding presents two principal questions: (1) whether an attorney's chronic depression at the time of misconduct may be used as a mitigating factor in fashioning the appropriate disposition, and (2) if so, whether the attorney's depression may serve as the basis for imposing a period of probation, premised on mitigation, that exceeds the period of suspension from the practice of law that would otherwise be warranted. The Board on Professional Responsibility found respondent had neglected a legal matter entrusted to him, DR 6-101(A)(3), had intentionally failed to seek a client's lawful objectives, DR 7-101(A)(1), and had engaged in conduct involving misrepresentation, DR 1-102(A)(4). Respondent offered medical evidence of his chrome depression and, at the hearing before the Hearing Committee, consented to a two-year period of probation. When the matter came before the Board, a majority found a causal nexus between respondent's depression and his professional misconduct and recommended four months' suspension from practice, with two months of suspension stayed on condition that respondent comply with the terms of a two-year supervised probation. Respondent filed no objection to this recommendation. A minority of the Board, however, found no causal nexus between respondent's depression and his misconduct and, accordingly, recommended the full four-month suspension without a stay, followed by a two-year period of supervised probation. We adopt the findings of the Board majority as well as the disposition it recommends.

I.

In March 1978, respondent Peek agreed to represent complainant in a civil suit. Complainant had filed a complaint with the Metropolitan Police Department alleging that, on March 8, 1978, she had been forcibly abducted from a common area of her apartment building, dragged into an adjacent, unlocked, abandoned laundry room, and forcibly raped. Three years later on March 7, 1981, the last day before the statute of limitations for bringing the civil suit expired, respondent filed a complaint in Superior Court. Summonses were issued for three defendants. The first two defendants were served promptly and answered the complaint. The third defendant was never served, however, and did not answer.

Because respondent never obtained service on the third defendant, the case was not set for trial. Nor did respondent undertake any discovery. On January 29 1985, the two defendants who had answered filed motions to dismiss for failure to prosecute, pursuant to Super.Ct.Civ.R. 41(b). Respondent failed to oppose; the motions were granted with prejudice. Respondent took no action to reinstate the complaint within the time permitted by local court rules.

Throughout this period, complainant telephoned respondent on many occasions to ascertain the status of her claim. Respondent failed to return most of these calls. When complainant was able to reach respondent, he assured her that everything "was fine." In February 1986, complainant contacted an attorney in Miami, Florida, where complainant had moved. That attorney called, as well as wrote, respondent to inquire about complainant's case but received no answer.

On April 7, 1986, respondent wrote complainant a letter explaining:

Your case is sitting in limbo right now, but I am taking the steps to get it on the calendar as soon as possible. This requires a motion which will be filed this week. It will be several weeks before a date is set, but I will be in touch with you before then.

Respondent apologized for the delay, attributing it to personal problems. After receiving the letter, complainant retained Steven M. Paysner, an attorney in the District of Columbia, to assist in determining the status of her claim. Paysner reviewed the court jacket and discovered that the case had been dismissed with prejudice.

On May 9, 1986, Paysner wrote to respondent, indicating he would give respondent ten days to seek vacation of the judgment. Approximately five days later, Paysner spoke by telephone with respondent, who asked for a little more time to complete his work. Respondent, however, never filed a motion to vacate. On May 22, 1986, Paysner filed a malpractice action for complainant against respondent in the United States District Court for the District of Columbia. The case was settled in February 1987.

II.

On July 3, 1986, Bar Counsel, who had learned of complainant's lawsuit, wrote to respondent about complainant's allegations of misconduct. On April 29, 1987, respondent replied, through counsel, that "extreme depression and a personal decline" had "impaired his ability to conduct his law practice."

Bar Counsel filed a petition instituting formal disciplinary proceedings, alleging that respondent had violated four Disciplinary Rules, as summarized by the Board:

A. Rule 6-101(A)(3), for neglect of a legal matter by allowing a suit which Respondent had filed on behalf of [complainant] to be dismissed for failure to place the cause at issue and by failing to take any action to reinstate the matter.

B. Rule 7-101(A)(1), for an intentional failure to achieve his client's lawful objectives by taking no action on behalf of [complainant] after Respondent had been given several opportunities to do so.

C. Rule 1-102(A)(4), for conduct involving misrepresentation by stating to his client that her case was still pending when, in fact, it had been dismissed.

D. Rule 2-110(B)(3), for failure to withdraw from his representation of [complainant] when Respondent knew that his mental or physical condition rendered it unreasonably difficult for him to carry out his employment on behalf of [complainant].

The Hearing Committee found clear and convincing evidence that respondent had violated the first three disciplinary rules as charged (but not the fourth).

In evaluating respondent's emotional state in mitigation of sanction, the Hearing Committee considered letters in the record from two psychiatrists: Dr. Eleanor A. Sorrentino, respondent's therapist, and Dr. Thomas Goldman, Bar Counsel's retained expert. Both professionals agreed that respondent had been suffering from chronic depression. Dr. Goldman described respondent's condition as

characterized by low mood, suicidal ideas without serious suicidal intent, social withdrawal, general disorganization with distinct self-punitive trends, (for example failure to file CJA vouchers for payment for work already completed) and difficulty maintaining his interest and concentration on his legal practice resulting in acts of omission etc., despite a conscious attitude of wishing to do a good job and a generally clear understanding of what his responsibilities are.

Both doctors agreed that, despite this condition, respondent was still able to practice law, although both stressed the need for continued psychiatric counselling and professional monitoring.

As for the connection between respondent's emotional condition and his professional misconduct, Dr. Sorrentino wrote: "In my professional opinion, Mr. Peek's failure to act in a timely manner in his client's behalf in [complainant's] case stemmed directly from his acute depressed state." Dr. Goldman offered no opinion as to the causal nexus between respondent's, condition and his disciplinary violations. The Committee made no findings as to the causal nexus between respondent's depressed state and his disciplinary violations, other than to reject any argument that respondent's condition had rendered him wholly unable to perform his professional duties.

As to sanction, both Bar Counsel and counsel for respondent favored a two-year period of supervised probation.¹ Bar Counsel acknowledged that "no attorney suffering from an emotional disability (as opposed to alcoholism) has ever been placed on probation in this jurisdiction" but argued, nonetheless, that respondent would be an appropriate candidate for probation. While agreeing that this was an appropriate case for probation, the Committee believed that respondent's previous disciplinary record,² coupled with a lack of contrition for his actions in complainant's case, indicated the need for a brief period of actual suspension from practice.

The Hearing Committee, therefore, recommended a thirty-day suspension, followed by an additional two-year period of suspension to be stayed on two conditions: that respondent continue to receive psychotherapy from Dr. Sorrentino throughout the period of probation unless medically terminated earlier by Dr. Sorrentino, and that respondent meet with a lawyer designated to monitor his practice not less than biweekly during the period of probation. Both respondent and Bar Counsel consented to the Hearing Committee's recommended disposition, and neither filed an objection with the Board.

The Board agreed with the Committee's findings that respondent had violated Disciplinary Rules 6-101(A)(3), 7-101(A)(1), and 1-102(A)(4) but differed with the Committee as to the appropriate sanction. The Board compared respondent's misconduct to the misconduct in In re Dory, 528 A.2d 1247 (D.C. 1987). Dory was a straightforward case: neglect of a legal matter entrusted to the attorney, failure to seek a client's lawful objectives, and failure to carry out an employment contract. There, the Board recommended, and we imposed, a thirty-day suspension.³ In the present case, however, the Board reasoned that, because of...