In re Reback

• Citation: 513 A.2d 226
• Decision Date: 31 July 1986
• Docket Number: No. 83-1289.,83-1289.
• Parties: In re William REBACK and Charles C. Parsons, Members of the Bar of the District of Columbia Court of Appeals.
• Court: Court of Appeals of Columbia District

513 A.2d 226

In re William REBACK and Charles C. Parsons, Members of the Bar of the District of Columbia Court of Appeals.

No. 83-1289.

District of Columbia Court of Appeals.

Argued En Banc September 18, 1985.

Decided July 31, 1986.

COPYRIGHT MATERIAL OMITTED

David Epstein, Washington, D.C., for respondents.

Elizabeth J. Branda, Asst. Bar Counsel, Washington, D.C., for Board on Professional Responsibility, petitioner (minority).

Joan Goldfrank, Executive Atty., Washington, D.C., for Board on Professional Responsibility, petitioner (majority).

Before PRYOR, Chief Judge, and NEBEKER, MACK, NEWMAN, FERREN, BELSON, TERRY, ROGERS and STEADMAN, Associate Judges.

BELSON, Associate Judge:

In this Bar discipline matter, we granted the respondent attorneys' petition for rehearing en banc and vacated the opinion of a division of this court suspending the attorneys from the practice of law for a year and a day. In re Reback and Parsons, 487 A.2d 235 (2-1 decision), vacated, 492 A.2d 267 (D.C.1985). The en banc court agrees with the division's unanimous holding concerning the respondents' alleged violations of certain disciplinary rules, but disagrees with the division majority's holding concerning sanction. Instead, we order both Reback and Parsons suspended for a period of six months, beginning 30 days from this date.

We repeat the division's summary of the factual and procedural history of the case:

Rosemary Lewis retained the firm of Reback and Parsons to pursue her divorce claim. While Reback was the only attorney to whom Lewis ever spoke, Parsons took responsibility for the case. He filed a verified complaint in the Superior Court.

Some months later, the court issued a warning notice pursuant to Super.Ct. Dom.Rel.R. 41(f), which provides that a case that is not at issue within six months after its filing date shall be dismissed after notice to the attorneys. Owing apparently to a defect in the firm's case-handling procedures, neither Reback nor Parsons saw the notice. The case was dismissed without their knowledge.

Shortly after the dismissal, Lewis' brother telephoned Reback to inquire about the progress of the case. Reback and Parsons then discovered that the case had been dismissed. They did not tell Lewis or her brother. Instead, they prepared a second complaint, identical in substance to the first.

The second complaint purported to be verified by Lewis. Instead of obtaining Lewis' signature, however, Reback signed Lewis' name to the complaint in the presence of Parsons. One of the two lawyers — or a secretary acting at their direction — then had the complaint notarized. Whoever took the complaint to the notary necessarily represented that the signature was genuine. Parsons filed the complaint, knowing that the signature was false.

The partners then assigned the case to an associate. They told the associate to come to them if he had questions. Other than giving him that instruction, they did not supervise him. He had trouble obtaining the required proofs of publication of notice to Lewis' husband. After another warning from the court, the second complaint was dismissed for failure to put it at issue within six months. Two weeks later the attorneys had the complaint reinstated.

Five months after the reinstatement, Lewis discovered that the first complaint had been dismissed and a second one filed over her falsified signature. She asked Reback and Parsons to withdraw as her counsel, which they did. They returned to her all the fees she had paid them.

The Hearing Committee held a hearing at which Reback and Parsons testified. They cooperated fully with the Hearing Committee and expressed remorse for their actions. The Hearing Committee found that they had violated D.R. 6-101(A)(3) (neglect of a legal matter) and D.R. 1-102(A)(5) (conduct prejudicial to the administration of justice). The Committee found no violation of D.R. 7-101(A)(1) (intentional failure to seek client's lawful objectives), D.R. 7-102(A)(5) (knowing false statement of law or fact), or D.R. 1-102(A)(4) (conduct involving dishonesty, fraud, deceit, or misrepresentation).¹ In recommending a sanction, the Hearing Committee put great weight on the factors mitigating the offenses, especially the fact that the attorneys had shown remorse and the fact that Reback in his 30 years of practice and Parsons in his 15 had never before faced disciplinary charges. The Hearing Committee recommended that the Board reprimand the lawyers.

Bar Counsel recommended that the Board adopt the Hearing Committee's findings and its conclusions on violations of the code. He recommended, however, that the Board increase the sanction to public censure.

A majority of the Board saw the case differently. Five of the nine Board members concluded that both Reback and Parsons had violated D.R.s 1-102(A)(4) and (5) (conduct involving dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration of justice), 6-101(A)(3) (neglect of a legal matter), and 7-102(A)(5) (knowing false statement of law or fact), and that Reback alone had violated D.R. 7-101(A)(1) (intentional failure to seek client's lawful objectives).² The Board majority recommended that this court suspend Reback for a year and a day and Parsons for 30 days.

The four-member minority of the Board concluded that both Reback and Parsons had violated only D.R.s 1-102(A)(5), 6-101(A)(3), and 7-102(A)(5). The minority saw the record as showing an unusually large number of mitigating factors. The dissenting members therefore recommended that both attorneys receive public censure.

¹ The cited disciplinary rules read in relevant part as follows.

D.R. 6-101(A): A lawyer shall not:

(3) Neglect a legal matter entrusted to him. D.R. 1-102(A): A lawyer shall not:

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

D.R. 7-101(A): A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules.

D.R. 7-102(A): In his representation of a client, a lawyer shall not:

(5) Knowingly make a false statement of law or fact.

Reback, 487 A.2d at 236-38 (footnote omitted).

The division accepted the Board's recommended findings of disciplinary violations except the finding that Reback was guilty of intentional failure to seek his client's lawful objectives, D.R. 7-101(A)(1). We agree with the division in this regard, and adopt and incorporate part I of the division opinion as the opinion of the en banc court. See Reback, 487 A.2d at 238-41.¹

On this rehearing, the en banc court focused on the question of what sanction is appropriate under the circumstances. Under D.C.Bar R. XI, § 7(3), when this court reviews the Board's report and recommendation on the issue of sanction, it "shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted." Since this is the first occasion for this court to pass upon conduct like that of respondents, there are no other cases of fully comparable conduct with which we must maintain consistency.² We must be concerned, however, with avoiding inconsistency as between these respondents themselves. Our resolution of this appeal avoids inconsistency by declining to follow the Board's recommendation that Reback be suspended for a year and a day and Parsons for 30 days but, instead, imposing on the two respondents equal sanctions for what we consider their equally egregious misconduct.

The Board recommended differing dispositions, concluding that Reback deserved a greater sanction than Parsons for three stated reasons: Reback violated D.R. 7 — 101(A)(1) intentional failure to seek client's lawful objectives), while Parsons did not; Reback spoke with Mrs. Lewis many times, while Parsons never spoke to her, circumstances that suggest that the deception and neglect were more Reback's responsibility than Parsons'; and Reback was directly responsible for the signature falsification and false oath, while Parsons had only ancillary responsibility.

As the division said in declining to follow the Board's recommendation on this point:

We do not share the Board's views on this point. We reject the first reason, of course, because we hold that Reback was not shown to have violated D.R. 7-101(A)(1). Thus the two attorneys committed identical substantive violations. We also cannot agree that Reback was ultimately more responsible for the neglect and for the failure to tell Lewis of the status of her case. While it is true that Lewis spoke only to Reback and probably regarded him as her lawyer, Parsons was entrusted with pressing the first complaint and was obliged to see to it that the client was aware of the case's progress. Moreover, there is no basis for distinguishing between Reback's and Parsons' failures to supervise the associate to whom the lawyers delegated responsibility for the second complaint. Finally, we think that Reback and Parsons were equally responsible for the false signature and false oath to the notary. While Reback actually signed Lewis' name, it was done in Parson's presence, and he then filed the complaint with the court, knowing that the signature was false. The evidence did not show who took the second complaint to be notarized, so we cannot know who assured the notary that the signature was genuine.

We, like the division, take the view that to impose differing sanctions on the two respondents would be to adopt "inconsistent dispositions for comparable conduct" and thus to bring about the asymmetry that D.C. Bar R. XI § 7(3) was intended to avoid. Therefore, we will impose sanctions that are equal.

We turn to the more difficult question of what equal sanction should be imposed on the two respondents. Again, under D.C. Bar ...