In re Rosen, 83-1288.
| Decision Date | 06 August 1984 |
| Docket Number | No. 83-1288.,83-1288. |
| Citation | 481 A.2d 451 |
| Parties | In re Sol Z. ROSEN, Respondent. |
| Court | D.C. Court of Appeals |
David Epstein, Washington, D.C., with whom R. Hale Foote and Thomas Farquhar, Washington, D.C., were on the briefs, for respondent.
Samuel McClendon, Asst. Bar Counsel, Washington, D.C., for petitioner; Thomas H. Henderson, Jr., Bar Counsel, Washington, D.C., and David Carr, Asst. Bar Counsel at the time the brief was filed, Washington, D.C., on brief.
Before MACK and FERREN,** Associate Judges, and YEAGLEY, Associate Judge, Retired.
In this disciplinary matter, the Board on Professional Responsibility has recommended that respondent be suspended from the practice of law for three months for making misrepresentations to the court on three separate occasions. Respondent contends that in arriving at this recommendation, the Board failed to consider findings of fact made by the Hearing Committee that weighed in favor of a less severe sanction. Respondent also argues that the recommended sanction is more severe than the punishments imposed by the Board and this court for similar conduct in previous cases. Finally, respondent contends that the Board and this court are without authority to consider prior disciplinary violations in determining appropriate sanctions in a pending matter. We adopt the Board's recommendation.
The misconduct in this case arose out of respondent's representation of Lonnie Turner and Janice Grant in an action they brought against a music recording company for breach of an employment contract. Respondent was charged with: (1) neglecting the Turner/Grant case and failing to seek the lawful objectives of his clients in violation of DR 6-101(A)(2) and DR 7-101(A)(1) and (3); (2) making misrepresentations to the court in violation of DR 1-102(A)(4) and DR 7-102(A)(5) and misrepresentations to his clients also in violation of DR 1-102(A)(4); and (3) making false statements to the Board and impugning the reputation of the presiding judge in the Turner/Grant litigation in violation of DR 1-102(A)(5). Following two days of evidentiary hearings, the Hearing Committee concluded that only the misrepresentation charges had been proven. The Committee discredited the testimony of the complaining witnesses, Turner and Grant, in finding that the remaining charges were without merit. While the Board recommended a harsher sanction than that sought by the Committee for the misrepresentation violation, it adopted the Committee's conclusion that the other charges had not been proven. We also agree with that determination.
As for the misrepresentation charges, the Committee found, and the Board agreed, that during the course of the Turner/Grant litigation, respondent made three false statements in papers that were filed in the United States District Court for the District of Columbia. The first misrepresentation was made in a "Motion for Continuance of Pre-trial" filed on April 2, 1980, in which respondent requested postponement "because of his inability to contact his clients to discuss matters that pertain to the pre-trial statement." Respondent's assertion that Turner and Grant were out of the jurisdiction during much of the pretrial period was rejected by the Committee as "baseless." The Committee pointed to testimony of respondent in which he indicated that he had numerous conferences and telephone conversations with his clients during this period.
The second misrepresentation was made in a "Motion for Continuance of Trial" filed on April 10, 1980. Respondent represented in that filing that "plaintiffs do not at this time have the money for bringing witnesses to trial in Washington" and that "plaintiffs have had difficulty in -euring [sic] all of their documents for trial." The Committee found, and the Board again agreed, that respondent's lack of preparedness was primarily related not to difficulties in securing documents and financing witnesses, but, rather, to respondent's procrastination in acting on these matters.
The final misrepresentation was made in a post-trial "Opposition to a Motion to Set Aside the Awarding of Attorney's Fees." Opposing counsel in the Turner/Grant case had urged the court to set aside the award because of respondent's pretrial failures to comply with discovery and deadlines listed in the pretrial order. In his opposition, respondent asserted that "compliance with the [pretrial] order of the court was impossible by virtue of the fact that the plaintiffs who possessed all of the records left the area and did not return until a day prior to trial." Again citing respondent's testimony in which he stated that he had numerous conversations with his clients prior to trial, the Committee found that there was no truth to the assertion that Turner and Grant were not in the jurisdiction during the pretrial period. The Committee found further that the record did not support the assertion that the clients' possession of records prevented respondent from complying with the pretrial order. The Board adopted these findings.
The Committee and the Board concluded that respondent's statements were "knowing misrepresentations" made in violation of DR 1-102(A)(4) and 7-102(A)(5)1 and the Committee recommended the sanction of public censure. The Board, however, focused on respondent's prior disciplinary record in recommending a suspension of three months. At that time, he had previously been informally admonished by Bar Counsel for failing to carry out a contract of employment and was publicly reprimanded in 1979 by a state court in Virginia for falsifying the mailing date of a paper filed with the court.2 In light of the similarity between the latter violation and those at issue in this proceeding, the Board was of the view that a stronger sanction was needed to make it clear that misrepresentations to courts in this jurisdiction will not be tolerated. The Board reviewed sanctions imposed for comparable misconduct in this jurisdiction and concluded that its recommended sanction met the standard of consistency required under D.C.App.R. XI § 7(3).
Respondent first contends that in recommending suspension, the Board ignored important credibility findings and substituted its own finding of fact on the nature of the misrepresentation for that of the Board. Specifically, respondent argues that the Board failed to consider the Committee's finding that Turner and Grant lacked credibility. This finding, he asserts, was fundamental to the Committee's conclusion that the misrepresentations were the result of negligent rather than intentional conduct. The Board's failure to consider this finding, it is argued, caused it to conclude that the misrepresentations were intentionally made and resulted in a harsher recommended sanction.
The fatal flaw in respondent's argument is that a review of the findings indicates that both the Committee and the Board concluded that the misrepresentations were knowingly made. In its report, the Committee stated: "In sum, the Committee concludes that the three quoted statements were knowing misrepresentations." In its report, the Board stated: "The record establishes that respondent knowingly made false statements in three separate pleadings submitted to the Court." Thus, while it is true that the Board did not refer to the Committee's finding on credibility in its report,3 it is clear that there was agreement that the misrepresentations were knowingly made. Respondent's contention that the Board impermissibly engaged in factfinding to reach a conclusion contrary to the Committee's is therefore without merit.
We turn next to consideration of the sanction recommended by the Board. Our review of recommended sanctions is governed by D.C.App.R. XI § 7(3) which directs us to "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." Accordingly, our review is limited, and rejection of a proposed sanction is appropriate only if the Board has abused its discretion. In re Rosen, 470 A.2d 292, 301; In re Haupt, 422 A.2d 768, 771 (D.C.1980) (per curiam). However, within the mandate of Rule XI, "each case must be decided on its particular facts." Id. at 771.
Here, when the Board recommended that respondent be suspended from the practice of law, pending before this court was another Board recommendation that respondent be suspended for three months for disciplinary violations unrelated to this case. That recommendation was based upon findings that respondent had revealed a confidence of his client, had neglected a legal matter entrusted to him, and had twice failed to seek a client's lawful objections in violation of DR 4-101(B)(1), DR 6-101(A)(3) and DR 7-101(A)(1).4 A division of this court found the recommended sanction inadequate and increased respondent's suspension to six months. In re Rosen, supra, 470...
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In re Jones, 87-252.
...see In re Jones, 521 A.2d 1119 (D.C. 1986), which may properly be taken into account in imposing a sanction here. In re Rosen, 481 A.2d 451, 455 (D.C. 1984) (citing cases); In re Roundtree, 467 A.2d 143, 148 (D.C. 1983). We conclude that the Board, in the exercise of its discretion, has mad......
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IN RE GOFFE, 90-BG-888
...has no prior disciplinary record, a factor that we have taken into account in mitigation. Reback, 513 A.2d at 233; In re Rosen, 481 A.2d 451, 455 (D.C. 1984); In re Cope, 455 A.2d 1357, 1361 (D.C. 1983). Here, however, even without regard to respondent's difficulties with the United States ......
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In re Cleaver-Bascombe, 06-BG-858.
...497 A.2d 1062 (D.C.1985). A thirty-day suspension was ordered for making three separate misrepresentations to a court; In re Rosen, 481 A.2d 451 (D.C.1984), and for falsification of travel expenses by a law firm associate, In re Schneider, 553 A.2d 206 (D.C.1989) (Newman, J., dissenting, wo......
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In re Hutchinson, 85-53.
....... To support his argument for a short suspension, Hutchinson primarily relies on In re Rosen, 481 A.2d 451 (D.C. 1984); In re Kent, 467 A.2d 982 (D.C. 1983); In re Keiler, 380 A.2d 119 (D.C. 1977); and District of Columbia Bar v. ......