In re Szymkowicz, 14-BG-884

• Decision Date: 08 November 2018
• Docket Number: No. 14-BG-884,14-BG-884
• Citation: 195 A.3d 785
• Parties: IN RE John T. SZYMKOWICZ, John P. Szymkowicz, Leslie D. Silverman, and Robert King, Respondents. Members and Former Member of the Bar of the District of Columbia Court of Appeals of the District of Columbia (Bar Registration Nos. 946079, 462146, 448188, and 922575)
• Court: D.C. Court of Appeals

195 A.3d 785

IN RE John T. SZYMKOWICZ, John P. Szymkowicz, Leslie D. Silverman, and Robert King, Respondents.

Members and Former Member of the Bar of the District of Columbia Court of Appeals of the District of Columbia (Bar Registration Nos. 946079, 462146, 448188, and 922575)

No. 14-BG-884

District of Columbia Court of Appeals.

Argued April 11, 2018

Decided November 8, 2018

Robert N. Levin, Gaithersburg, for respondents John T. Szymkowicz and John P. Szymkowicz.

Robert W. King, pro se.

Leslie D. Silverman, pro se, made an appearance.

Julia L. Porter, Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for petitioner.

Before Thompson and McLeese, Associate Judges, and Steadman, Senior Judge.

Dissenting opinion by Senior Judge Steadman at page 792.

Per Curiam:

This attorney-discipline matter arises from respondents' representation of Genevieve Ackerman. In its initial report and recommendation, the Board on Professional Responsibility concluded that respondents had not been shown to have violated the District of Columbia Rules of Professional Conduct in connection with their representation of Ms. Ackerman, except that respondent Robert King violated D.C. R. Prof. Conduct 1.5 (b), by failing to obtain a written retainer agreement from Ms. Ackerman.

In In re Szymkowicz , 124 A.3d 1078 (D.C. 2015) (per curiam), this court accepted the Board's conclusions in a number of respects, but referred the matter back to the Board for further proceedings with respect to whether respondents violated D.C. R. Prof. Conduct 1.7, which governs conflicts of interest. Id. at 1082-89. Specifically, we concluded that, because of the risks of conflicts of interest between Ms. Ackerman and her son, Dr. Stephen Ackerman, none of the respondents could permissibly have represented Ms. Ackerman unless the respondents obtained Ms. Ackerman's informed consent to the representation, pursuant to Rule 1.7 (c). Id. at 1085-88.

On further consideration, the Board concluded that Disciplinary Counsel had failed to prove by clear and convincing evidence that respondents John T. and John P. Szymkowicz, who are father and son, failed to obtain informed consent from Ms. Ackerman. On the other hand, the Board concluded that Mr. King and respondent Leslie D. Silverman violated Rule 1.7 (b), because neither Mr. King nor Ms. Silverman offered evidence that Ms. Ackerman gave them informed consent. The Board, however, recommended against imposing sanctions against Mr. King or Ms. Silverman on the basis of their violations of Rule 1.7. Disciplinary Counsel takes exception to the Board's conclusions and recommendations. We adopt the Board's conclusion that the Szymkowiczes were not shown by clear and convincing evidence to have violated Rule 1.7. As a sanction for Mr. King's violation of Rule 1.7, we publicly censure Mr. King in this opinion. Because Ms. Silverman was disbarred by consent in a separate matter, In re Silverman , 175 A.3d 89 (D.C. 2017) (per curiam), we dismiss the current disciplinary proceeding against Ms. Silverman as moot. Cf., e.g. , In re McCoole , 791 A.2d 910 (D.C. 2002) (per curiam) (where respondent was disbarred in one disciplinary proceeding, court dismissed second disciplinary proceeding as moot).

I.

The facts in this matter are discussed in some detail in our initial opinion in this case. In re Szymkowicz , 124 A.3d at 1079-82. In brief, Ms. Ackerman, who was then eighty-five years old, set up a trust in 2002 to benefit both herself and Dr. Ackerman. Id. at 1079. Dr. Ackerman soon raised issues about the administration and validity of the trust, and Dr. Ackerman hired the Szymkowiczes to represent him. Id. at 1080. In 2005, the Szymkowiczes began to also represent Ms. Ackerman. Id. After extensive litigation, the courts upheld the trust. Id. at 1080-81.

In March 2007, John T. Szymkowicz withdrew from one pending case, because of a concern that he would be called as a witness in the case. In re Szymkowicz , 124 A.3d at 1081. Ms. Silverman and Mr. King subsequently represented Ms. Ackerman in that case and also with respect to related matters. Id. Ms. Silverman was paid by Dr. Ackerman from Ms. Ackerman's funds, and it was Dr. Ackerman who retained Mr. King to act as Ms. Ackerman's attorney in one of the related matters. Id. While representing Ms. Ackerman, Ms. Silverman and Mr. King communicated with Dr. Ackerman, who held Ms. Ackerman's power of attorney (POA). Id.

There was a substantial dispute before the Hearing Committee as to whether Ms. Ackerman was competent during the relevant time period, or whether instead Ms. Ackerman was not competent and respondents knew or should have known that she was incompetent and wrongfully took advantage of Ms. Ackerman to benefit themselves and Dr. Ackerman. In re Szymkowicz , 124 A.3d at 1081-86. The Hearing Committee found that although Ms. Ackerman had some mental limitations, she was competent. Id. at 1082. The Board accepted that conclusion in its initial report and recommendation, and this court did the same in our initial decision. Id. at 1082-86.

On the question whether the Szymkowiczes obtained informed consent from Ms. Ackerman, the Hearing Committee heard and credited testimony that John T. Szymkowicz "many times" discussed with Ms. Ackerman potential conflicts and risks arising out of John T. Szymkowicz's joint representation of Ms. Ackerman and Dr. Ackerman. Specifically, John T. Szymkowicz testified that he explained to Ms. Ackerman that (1) she could be represented by another lawyer if she desired; (2) the contemplated litigation could cost tens of thousands of dollars, given that she would be paying her own legal fees as well as those of the trust defending against her suit; and (3) if she was successful in challenging the validity of the trust, her son could squander her assets.

In its second report and recommendation, the Board analyzed the issue of informed consent as follows. First, Disciplinary Counsel bears the burden of proving by clear and convincing evidence that a respondent violated a Rule of Professional Conduct. See, e.g. , In re Anderson , 778 A.2d 330, 335 (D.C. 2001) (noting general rule that "the burden of proving the disciplinary charges rests with [Disciplinary] Counsel") (brackets and internal quotation marks omitted). If Disciplinary Counsel presents evidence of a conflict of interest pursuant to Rule 1.7 (b), a respondent may present evidence in support of the contention that the respondent obtained informed consent pursuant to Rule 1.7 (c). If a respondent offers such evidence, then Disciplinary Counsel must prove by clear and convincing evidence that the respondent did not in fact obtain informed consent.

Applying that framework, the Board concluded that the Szymkowiczes had introduced evidence of informed consent and that Disciplinary Counsel had failed to prove by clear and convincing evidence that they had failed to obtain informed consent. Although John P. Szymkowicz did not personally discuss conflicts of interest with Ms. Ackerman, the Board concluded that John P. Szymkowicz reasonably relied upon assurances from his father on the issue. We do not understand Disciplinary Counsel to argue at this juncture that John P. Szymkowicz violated Rule 1.7 even if his father did not, so we hereinafter focus on the conduct of John T. Szymkowicz in assessing whether the Szymkowiczes were shown to have violated Rule 1.7.

With respect to Mr. King, the Board concluded that Disciplinary Counsel had established a violation of Rule 1.7 but recommended against imposing a sanction for that violation. The Board concluded that although Mr. King should not have relied on Ms. Ackerman's POA to consult with Dr. Ackerman, rather than dealing directly with Ms. Ackerman and inquiring into possible conflicts of interests, that was a novel conclusion reached by the court in In re Szymkowicz , and Mr. King should not be disciplined for failing to foresee that conclusion. The Board also accepted the Hearing Committee's finding that Ms. Ackerman was not harmed by Mr. King's failure to obtain informed consent, because Ms. Ackerman's objectives coincided with the actions Mr. King took on her behalf. Finally, the Board noted that Mr. King's sole prior discipline was a public reprimand in Maryland and that there was no evidence that Mr. King acted dishonestly.

II.

We accept the Board's factual findings if they are supported by substantial evidence. D.C. Bar R. XI, § 9 (h)(1). We review de novo the Board's conclusions of law. In re Johnson , 158 A.3d 913, 918 (D.C. 2017). We will adopt the Board's recommended sanction "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI § 9 (h)(1).

A.

We turn first to the question whether Disciplinary Counsel established that the Szymkowiczes violated Rule 1.7. Under that Rule, "a lawyer shall not represent a client with respect to a matter if, [among other things] ... [s]uch representation will be or is likely to be adversely affected by representation of another client," unless "[e]ach potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation." D.C. R. Prof. Conduct 1.7 (b)(2), (c)(1). "Disclosure and informed consent are not mere formalities. Adequate disclosure requires such disclosure of the parties and their interests and positions as to enable each potential client to make a fully informed decision as to whether to proceed with the contemplated representation." D.C. R. Prof. Conduct 1.7, Comment [27].

"In the end, this case turns on the allocation of the burden of proof." In re Allen , 27 A.3d 1178, 1187 (D.C. 2011). Under the Board's rules, "Disciplinary Counsel shall have the burden of proving violations...