In re Shay, No. 99-BG-649.

• Decision Date: 27 July 2000
• Docket Number: No. 99-BG-649.
• Citation: 756 A.2d 465
• Parties: In re Martha Jane SHAY, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

756 A.2d 465

In re Martha Jane SHAY, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

No. 99-BG-649.

District of Columbia Court of Appeals.

July 27, 2000.

ORDER

PER CURIAM.

Upon consideration of the joint motion of the Board on Professional Responsibility and Bar Counsel requesting that the Court append to its per curiam opinion of April 27, 2000, published at 749 A.2d 142, the Report and Recommendation of the Board and cause the opinion and Board report to be republished, respondent's consent motion for leave to file opposition out of time and the lodged opposition, and the lodged reply thereto, it is

ORDERED that respondent's motion is granted, and the Clerk is directed to file the lodged opposition and reply. It is

ORDERED that the joint motion of the Board and Bar Counsel is granted, and the Clerk is directed to append the Report and Recommendation of the Board on Professional Responsibility to this Court's opinion of April 27, 2000, and cause the opinion, together with the Report, to be republished.

APPENDIX

District of Columbia Court of Appeals

IN RE MARTHA JANE SHAY, RESPONDENT.

A Member of the Bar of the District of Columbia Court of Appeals

On Report and Recommendation of the Board on Professional Responsibility

Submitted April 13, 2000

Decided April 27, 2000

Before SCHWELB, FARRELL, and GLICKMAN, Associate Judges.

PER CURIAM: The Board of Professional Responsibility has determined that respondent violated numerous Disciplinary Rules for (pre-1991 conduct) and Rules of Professional Conduct (for conduct occurring in 1991 and later). The crux of the misconduct is a conflict of interest which affected respondent's representation of two individuals in connection with estate planning. The Board recommends that respondent be suspended for ninety days.

Bar Counsel does not except to the Board's report and recommendation, and respondent has withdrawn exceptions previously taken.

This court will accept the Board's findings as long as they are supported by substantial evidence in the record. D.C. Bar R. XI, § 9(g)(1). Moreover, we will impose the sanction recommended by the Board "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." Id. Respondent's withdrawal of her exceptions to the Board's report and recommendation increases the court's already substantial deference to the Board. D.C. Bar R. XI, § 9(g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997).

We find substantial support in the record for the Board's findings and, accordingly, accept them. Given our heightened deference to the Board's unopposed recommendation, we also accepted the sanction recommended by the Board. Accordingly, it is

ORDERED that Martha Jane Shay is suspended from the practice of the law in the District of Columbia for ninety (90) days. Respondent's attention is directed to the requirements of D.C. Bar R. XI, § 14 relating to suspended attorneys.

So ordered.

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of MARTHA JANE SHAY, Respondent.

Bar Docket No. 54-96

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

Hearing Committee Number Eight concluded that Respondent, Martha Jane Shay, violated numerous Disciplinary Rules in the Code of Professional Responsibility (for pre-1991 conduct) and Rules of Professional Conduct (for conduct occurring in 1991 and later). The crux of the misconduct involved a conflict of interest for her representation of two individuals in connection with estate planning. Respondent takes exception to the Hearing Committee's findings of violations and to its recommended sanction of public censure. Bar Counsel takes exception to the Hearing Committee's sanction recommendation only.

We adopt the Hearing Committee's Findings of Fact with editorial changes. We agree with the Hearing Committee with respect to all of its conclusions concerning the violations. We recommend a 90-day suspension, however, rather than the public censure that the Hearing Committee thought appropriate.

I. Findings of Fact

1. Respondent is a member of the District of Columbia Bar, having been admitted on November 25, 1975.

2. After graduating from George Washington University Law School in 1975, Respondent became an associate at Ginsburg, Feldman & Bress, where her practice emphasized business law. In 1982, she became a partner in the Ginsburg firm and, in 1989, she became the managing partner. In the fall of 1991, she became a partner in the law firm of Reid & Priest. At the time of the hearing, she practiced law by herself on a limited basis, while devoting most of her business time to operating a children's book business. Tr. 164-67, 223.

3. The conduct at issue involves Respondent's dealings with several individuals, including a client identified herein as J.C. J.C. has been employed as an investment banker by different investment firms, including Johnston Lemon & Company and First Wheat Securities. These investment firms, on various occasions, were part of syndicates underwriting public offerings made by clients of Ginsburg, Feldman & Bress. Respondent met J.C. in approximately 1982 in connection with one of these public offerings. Tr. 167-68; 222-23; 299.

A. The Marriages of J.C. to L.F-C. and E.Y.

4. In 1973, J.C. married L.F-C. In approximately 1982, they legally separated; in 1984, they entered into a Separation, Support, and Property Settlement Agreement. They were not finally divorced, however, until late 1994. BX 13 at 4-8; 14 & 34; see Tr. 298.

5. Ms. E.Y. graduated from college in 1978 and thereafter worked for various brokerage firms. Her first marriage ended in early 1982 with a divorce. Tr. 15-18.

6. In 1980, E.Y. met J.C. when she went to work at the Johnston Lemon brokerage firm. She initially worked in J.C.'s department where he was one of her supervisors. Tr. 19-20.

7. In 1981, E.Y. and J.C. began to date. At that time, both were married to their respective spouses, but in various stages of legal separation. Tr. 21,22, 298.

8. In 1982, after her divorce was final, E.Y. began to reside with J.C. She moved out after several months because she felt that J.C. was not sufficiently persistent in finalizing his divorce and she was "out of patience." By Christmas of 1982, however, she had moved back in with him. Tr. 24-25.

9. Over the next few years, J.C.'s divorce was a frequent topic of discussion between E.Y. and J.C. J.C. advised her that the process of divorcing L.F-C. was difficult because of L.F-C.'s demands and personal feelings. Throughout this time, J.C. assured E.Y. that progress was being made and that L.F-C. and he were reaching agreements with respect to property division matters. Tr. 23-26.

10. In addition to their professional interaction with regard to public offerings, Respondent and J.C. came to be social friends sometime in 1982. E.Y. met Respondent through J.C. in 1985 at a social function while E.Y. was still employed by Johnston Lemon. E.Y. was aware that Respondent was a lawyer at Ginsburg, Feldman & Bress, as well as J.C.'s friend and advisor. Tr. 27-29, 233, 300.

11. In late 1985, J.C. falsely told E.Y. that he and his first wife, L.F-C., were finally divorced. On February 19, 1986, J.C. and E.Y. participated in a marriage ceremony in Washington, D.C. When he applied for the marriage license, J.C. falsely stated that he had not been married previously. BX 18. In fact, Mr. J.C. remained legally married to L.F-C. at the time of the February 1986 "marriage" to Ms. Y. and continued to be married to L.F-C. until November 28, 1994. 12. In 1986, E.Y. became pregnant. She and J.C. had their first child in February 1987. Tr. 36.

B. Respondent Is Retained by J.C.

13. In late 1986, J.C. called Respondent and explained that he needed to speak with her regarding a confidential matter. When they met, J.C. told Respondent that while he had legally separated from L. F-C., he had never obtained a divorce. He further told Respondent that when E.Y. stated that she would leave him if he was not going to marry her, he became distraught, obtained a marriage license and married E.Y. without telling her the truth that he was not divorced. Tr. 170-71; Tr. 300, J.C. explained that E.Y. was pregnant and he asked Respondent to help him "clean up the mess he had made." J.C. insisted on complete confidentiality of this information. Tr. 170-72.

14. Respondent advised J.C. to tell E.Y. the truth, that he was not divorced from L.F-C. He responded that he could not tell her at that time because E.Y. was two months from giving birth and he did not want to upset her. He said that he would tell her after the baby was born and the divorce was close to being finalized. Id. at 173.

15. Respondent advised J.C. that she did not practice domestic relations law, but she agreed to provide him assistance and guidance with regard to his divorce and separation agreement. J.C. retained Robert Liotta, Esquire, to be his attorney of record in the divorce proceeding. Tr. 171-72, 175-227; BX 2, 8,16, and 19.

16. In the Spring of 1987, Respondent assisted Mr. Liotta in providing legal advice to J.C. with regard to amending his 1984 separation agreement with L.F-C. Based on her discussions with J.C., Respondent provided edits and revisions on a draft of the proposed "Amendment to Separation, Support and Property Settlement Agreement of August 23, 1984." Tr. 176-77, 225-26, 233; BX 5. The proposed amended separation agreement acknowledged that L.F-C. was challenging the validity of the 1984 separation agreement because of her lack of counsel and also because of alleged misrepresentations made to her by J.C. as to the 1984 agreement's purpose. Tr. 233; BX 5 at 5. The proposed amendments to the 1984 separation agreement, which Respondent reviewed and revised, imposed additional financial obligations on J.C. to L.F-C. Tr. 233; BX 2.

17. While...