In re Reback, 83-1289.

• Decision Date: 31 January 1985
• 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: D.C. Court of Appeals

487 A.2d 235

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 June 26, 1984.

Decided January 31, 1985.

David T. Austern, Washington, D.C., with whom Ronald A. Schechter, Washington, D.C., was on briefs, for respondents.

Jackson H. Rose, Asst. Bar Counsel, Washington, D.C., with whom Thomas H. Henderson, Jr., Bar Counsel, Washington, D.C., was on brief, for Board on Professional Responsibility, petitioner (minority).

Joseph L. Mayer, Executive Atty., Washington, D.C., for Board on Professional Responsibility, petitioner (majority).

Before NEWMAN, BELSON and TERRY, Associate Judges.

PER CURIAM:

In this disciplinary matter, attorneys William Reback and Charles C. Parsons contest the Report and Recommendations of the Board on Professional Responsibility. A majority of the Board concluded that the attorneys had each violated several provisions of the Code of Professional Responsibility. The Board majority recommended that both be suspended, Reback for a year and a day and Parsons for 30 days. We reject one of the Board's findings of violation by Reback and partially disagree with the Board's recommendation as to sanction, ordering instead that both attorneys be suspended for a year and a day. In all other respects we accept the Board's findings and adopt its recommendations.

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.

The 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.

We affirm the Board's findings of violations other than its finding that Reback was guilty of intentional failure to seek his client's lawful objectives, and conclude that both attorneys should be suspended for a year and a day. Our discussion will develop first the basis for our holdings concerning code violations and second the considerations that bear upon the proper sanction.

I. Code violations

A. D.R. 6-101(A)(3): Neglect of a legal matter entrusted to the lawyer.

The Hearing Committee, the Bar Counsel, and both the majority and minority of the Board agreed that Reback and Parsons had violated D.R. 6-101(A)(3) by neglecting the divorce suit that Lewis had entrusted to them. This consensus is clearly correct. An ABA Informal Opinion states:

Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect usually involves more than a single act or omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith.

ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1273 (1973). Among other things, Reback and Parsons failed over an extended period of time to put the first complaint at issue and failed to ensure that their associate put the second one at issue. Thus they committed more than "a single act or omission." Reback and Parsons argue that the Board improperly held them accountable for their associate's ethical breaches. The majority did not impute the associate's violations to the partners, however. Rather it viewed the associate's mistakes as evidence of the partner's failure to supervise him; that failure to supervise, combined with the partners' other lapses, constituted neglect under D.R. 6-101(A)(3). See In re Alexander, 466 A.2d 447 (D.C.1983) (attorney violated D.R. 6-101(A)(3) by delegating responsibility for a case to an inexperienced associate and then failing to prepare the associate for the representation; attorney's failure to rectify associate's errors, failure to appear for court hearings, and failure to return client's telephone calls also supported the Board's finding of the violation), cert. denied, ___ U.S. ___, 104 S.Ct. 1680, 80 L.Ed.2d 154 (1984).

B. D.R. 1-102(A)(5): Conduct prejudicial to the administration of justice.

We also have no doubt that when Reback and Parsons signed the false signature and Parsons filed the complaint, they engaged in conduct prejudicial to the administration of justice, thereby violating D.R. 1-102(A)(5). The attorneys argue that the second complaint presented facts and arguments identical to those in the first complaint, so there was no risk that the court would reach an incorrect decision. This argument is untenable. As we said in In re Keiler, 380 A.2d 119, 125 (D.C.1977) (per curiam), "the prohibition against `conduct prejudicial to the administration of justice' bars not only those activities which may cause a tribunal to reach an incorrect decision, but also conduct which taints the decision making process." The filing of a complaint that falsely purports to have been signed by the plaintiff surely taints the decision making process with deception.

C. D.R. 7-102(A)(5): Knowing making of false statement of law or fact; D.R. 1-102(A)(4): Conduct involving dishonesty, fraud, deceit, or misrepresentation.

The Board determined that the attorneys had violated D.R. 7-102(A)(5) and D.R. 1-102(A)(4) by signing and filing the second complaint. The Hearing Committee, however, employing a clear and convincing evidence standard, In re Smith, 403 A.2d 296, 302 (D.C.1979), had decided that the record did not support a ruling that the attorneys had violated those rules. When the Board considers alleged violations that the Hearing Committee declined to find, it must employ a clear and convincing evidence standard; by contrast, when the Board reviews findings of violations that the Hearing Committee made, it employs a substantial evidence test. Id. Upon judicial review "[i]n considering the appropriate order, the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record." D.C.Bar.R. XI, § 7(3). In...