In re Pennington, 05-BG-681.

• Decision Date: 26 April 2007
• Docket Number: No. 05-BG-681.,No. 06-BG-891.,05-BG-681.,06-BG-891.
• Citation: 921 A.2d 135
• Court: D.C. Court of Appeals
• Parties: In re Jill Johnson PENNINGTON and In re N. Frank Wiggins, Respondents. Members of the Bar of the District of Columbia Court of Appeals Bar Registration (Bar Registration Nos. 362592 & 194076).

921 A.2d 135

In re Jill Johnson PENNINGTON and In re N. Frank Wiggins, Respondents Members of the Bar of the District of Columbia Court of Appeals Bar Registration (Bar Registration Nos. 362592 & 194076).

No. 05-BG-681.

No. 06-BG-891.

District of Columbia Court of Appeals.

Argued April 2, 2007.

Decided April 26, 2007.

Jill Johnson Pennington, pro se.

N. Frank Wiggins, pro se, with whom John C. Maginnis, III, Washington, DC, was on the brief.

Julia L. Porter, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, were on the brief, for the Office of Bar Counsel.

Nancy C. Crisman, filed a statement in lieu of brief on behalf of the Board on Professional Responsibility.

Before WASHINGTON, Chief Judge, and FARRELL and KRAMER, Associate Judges.

FARRELL, Associate Judge:

Before us are consolidated recommendations of the Board on Professional Responsibility, one to impose reciprocal discipline on attorney Jill J. Pennington in the form of suspension for thirty days, the other to impose original discipline on attorney N. Frank Wiggins in the form of a suspension for sixty days, thirty days of which would be stayed in favor of unsupervised probation for one year, during which he would be expected to complete a CLE course in legal ethics. Wiggins contests the Hearing Committee's finding of misconduct, accepted by the Board; Pennington does not dispute the Maryland Court of Appeals' findings of misconduct, but defends the Board's recommendation of a thirty-day suspension rather than disbarment, which that court ordered. Bar Counsel disagrees with both sanctions recommended by the Board.

We accept the Board's conclusions regarding Wiggins' misconduct and its recommended sanction as within the range of discipline in this jurisdiction for comparable behavior. We reject the Board's recommendation of a thirty-day suspension for Pennington, and order her to be suspended from the practice of law in this jurisdiction for two years, with the requirement that she prove rehabilitation in order to be reinstated. Although we agree with the Board, for reasons to be stated, that this jurisdiction would impose "substantially different discipline," D.C. Bar Rule XI, § 11(c)(4), for the misconduct Maryland found to require disbarment of Pennington, the Board's recommendation is much too lenient in light of the nature of the misconduct found by our sister court, to whose finding in that regard we must defer.

I. The Facts

The actions of Pennington and Wiggins at issue concern the same basic events as described by the disciplinary judge in Maryland, whose findings were adopted by the Court of Appeals in the Pennington matter and do not differ materially from the Hearing Committee's findings in the Wiggins matter. We set forth the facts, with minor editing, as summarized in the Maryland proceedings:¹

On September 15, 1999, Denise Haynes-Butler . . . was involved in a motor vehicle accident with Mr. James Tidd. . . . Mrs. Butler sustained injuries as a consequence of the motor vehicle accident. On September 20, 1999, Mrs. Butler and her husband, Gary Butler . . . retained [Ms. Pennington] to pursue their claims against Mr. Tidd arising from the motor vehicle accident.

A written Retainer Agreement was signed by Mr. and Mrs. Butler on September 20, 1999, providing for [Ms. Pennington] to receive a contingent legal fee of one-third (1/3) of the total recovery obtained by way of settlement or forty percent (40%) of the total recovery obtained by settlement or judgment after suit was filed as payment for her legal services on their behalf.

Mr. Tidd was insured by Amica Mutual Insurance Company. . . . Nationwide Insurance Company insured Mr. and Mrs. Butler. After consultation, the Butlers informed [Ms. Pennington] that they would agree to a sum of not less than ten thousand dollars ($10,000.00) to fully settle their claims against Mr. Tidd and Amica. [Ms. Pennington], on behalf of the Butlers, and Amica discussed settlement of the claims. [Ms. Pennington] demanded over $20,000.00 for settlement of the Butlers' personal injury claim. Amica, in turn, extended a settlement offer of $9,500.00. Unfortunately, [Ms. Pennington] and Amica were unable to reach a settlement. . . .

On August 12, 2002, [Ms. Pennington] filed a Complaint, Butler v. Tidd (hereinafter 'Butler Complaint'), in the Circuit Court for Prince George's County against Mr. Tidd for negligence and loss of consortium and Nationwide Insurance Company for uninsured/underinsured motorist and personal injury protection claims on behalf of Mr. and Mrs. Butler. The Butler Complaint was filed two months before the Statute of Limitations tolled. Simultaneously with the submission of the Butler Complaint, [Ms. Pennington] submitted another[, unrelated] Complaint, Brown v. Austin (hereinafter `Brown Complaint'), in the Circuit Court for Prince George's County Maryland. Although the captions on these two Complaints were different, the Clerk's Office mistakenly assigned the two Complaints the same case number-CAL02-19945. The Brown Complaint was the only Complaint that the Clerk's Office showed a record for having been properly filed and docketed.

[Ms. Pennington] did not recognize the mistake made by the Clerk's Office until on or about October 28, 2002, when she received a letter from . . . an adjuster with Amica, acknowledging receipt of the Butler Complaint and requesting verification of the date on which the summons and Complaint was filed in the Butler case. The letter also advised [Ms. Pennington] that the case number provided did not correspond with the plaintiffs and defendants in the Butler Complaint.

[Ms. Pennington] acknowledges that two checks were issued by her office in the amount of $100 on August 12, 2002 one check, Check No. 1413, drawn from her escrow account for the filing of the Brown Complaint and another check, Check No. 1910, drawn from her operating account for the filing of the Butler Complaint. Check No. 1413 was negotiated by the Prince George's County Circuit County Clerk's Office on August 15, 2002. [Ms. Pennington] received a returned copy of Check No. 1413 with her August 2002 bank statement. Check No. 1910, which was written for the filing fees associated with the Butler Complaint, was never negotiated by the Clerk's Office.

Upon learning of this error . . . [Ms. Pennington] contacted the Clerk's Office to determine what actions would be necessary to correct the error. [She] was advised by the Clerk's Office that she needed to submit the file stamped copy of the Butler Complaint and the cancelled check for the filing fee. It was at this time that [Ms. Pennington] became aware that Check No. 1910 was never negotiated. The Statute of Limitations had expired on the Butlers' claim at that time.

On November 9, 2002, [Ms. Pennington] sent a letter to the attorney for Amica . . . indicating that the Statute of Limitations had passed on the Butlers' claim before the error was brought to her attention and that he could "close [his] file on this claim." Thereafter, [Ms. Pennington] agreed to sign and present to the court a joint Line of Dismissal With Prejudice in the Butler case. This line of dismissal was filed on January 9, 2003.

[Ms. Pennington] did not advise Mr. or Mrs. Butler of the error that occurred with the filing of their Complaint. [She] did not advise Mr. or Mrs. Butler that their case was dismissed with prejudice and that the Statute of Limitations now barred their claim. Furthermore, [she] did not consult with either Mr. or Mrs. Butler regarding the dismissal of their Complaint with prejudice nor did she receive their consent to dismiss their claim.

[Ms. Pennington] then decided that she would not disclose the dismissal of the claim to her clients, the Butlers. Rather she would attempt to make them whole by paying them what she thought would placate them and what she perceived to be fair to them, i.e., the sum of $10,000.00 out of her own personal funds. It was also at this time that [she] sought the legal and ethical advice of N. Frank Wiggins, Esquire. . . .

Mr. Wiggins, at the time, was a partner at the law firm of Venable, Baetjer, Howard and Civiletti. . . . [Ms. Pennington had] worked for Mr. Wiggins at his previous law firm, Cohn and Marks, for approximately four and one-half years. Over the years, [Ms. Pennington] and Mr. Wiggins have maintained personal contact with one another, often consulting with each other on legal matters. . . .

[Ms. Pennington] advised Mr. Wiggins of the events that transpired and sought his counsel and advice on her plan to pay the Butlers from her own personal funds. Specifically, [she] sought reassurance from Mr. Wiggins that her payment to her clients out of her personal funds and her nondisclosure of the facts would not in any way violate any laws or rules of ethical conduct in Maryland, or otherwise cause any problems for her or the Butlers. After researching the matter, Mr. Wiggins opined incorrectly to [Ms. Pennington] that no disclosure was required.

On February 6, 2003, [Ms. Pennington] met with Mr. and Mrs. Butler. During this meeting, [Ms. Pennington] presented the Butlers a document entitled "Statement of Settlement." [She] did not disclose to the Butlers that the check they would receive would not come from the settlement of their case but, instead, directly from [her] own funds. The "Statement of Settlement" presented to the Butlers was derived from a form that [Ms. Pennington] customarily utilized when she disbursed funds obtained through settlement of claims with third parties for the benefit of her clients. In fact, the Butlers were presented with a similar "Statement of Settlement" in September 29, 1999, relating to their settlement of the property damage claim with Amica.

The "Statement of Settlement" presented to the Butlers on February 6, 2003, although substantially similar to the September 29, 1999 statement, contained two modifications. The lines designating "...