Matter of Alexander, M-120-82.
| Decision Date | 07 September 1983 |
| Docket Number | No. M-120-82.,M-120-82. |
| Citation | 466 A.2d 447 |
| Parties | In the Matter of Harry Toussaint ALEXANDER, A Member of the Bar of the District of Columbia Court of Appeals. |
| Court | D.C. Court of Appeals |
Wallace E. Shipp, Jr., Asst. Bar Counsel, Washington, D.C., with whom Fred Grabowsky, Bar Counsel, Washington, D.C., was on brief, for Bd. on Professional Responsibility.
James W. Cobb, Washington, D.C., for respondent.
Before KERN and FERREN, Associate Judges, and KELLY, Associate Judge, Retired.1
In this disciplinary proceeding, the Board on Professional Responsibility (Board) concluded, consistent with the report of a Hearing Committee, that respondent, a member of the District of Columbia Bar, twice neglected a legal matter entrusted to him in violation of DR 6-101(A)(3), and once engaged in conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). It recommended that respondent be suspended from the practice of law for three months. Respondent argues, in excepting to the Board's report, that (1) the Board erred in rejecting his claim that he was denied a fair and impartial hearing before the Committee; and (2) the findings of the Board, and the sanctions recommended by it, are inconsistent with the weight of the evidence.
Considering the Board's report in light of respondent's exceptions, we are required to "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, . . ." and must "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." D.C.App.R. XI, Sec. 7(3); In re Smith, 403 A.2d 296, 302-03 (D.C. 1979). After careful scrutiny of the Committee hearing transcript, as well as the remainder of the record before us, we conclude that the Board's findings are supported by substantial evidence and that the recommended sanction of three months suspension is comparable to the disposition of cases involving similar misconduct. Accordingly, we affirm.
The asserted instances of respondent's misconduct arise from his representation of two different clients. We separately set forth with regard to each the pertinent, uncontested facts found by the Board.
Respondent was retained counsel for Willie Alexander who faced charges of driving under the influence and reckless driving. At respondent's request, a trial date of November 6, 1980, was set. On that date, before Judge Tim Murphy, the case was called. Present were the prosecutor, the government witnesses and the defendant; respondent never appeared. After approximately an hour delay, the case was continued to the following day.
During the afternoon of November 6, respondent was passed in the courthouse by Judge Murphy's clerk who advised him that a case in which he was involved had been continued to the following day due to his failure to appear. The clerk was unable to remember the name of the case. Respondent did not check in with the court.
The next day, November 7, the case again was called; all parties previously present again were present; respondent never appeared. The court continued the case. Later that afternoon, respondent finally appeared before the court. His explanations for his absence were refused, a complaint regarding his conduct having already been directed by the court to the Office of Bar Counsel2
In June 1980, respondent was retained by Larry Fisher to represent him at a probation revocation hearing. Respondent requested, and received, a one thousand dollar ($1,000) retainer. Thereafter, Fisher was indicted on an uttering charge. He again sought the representation of respondent who requested an additional one thousand dollar ($1,000) retainer. As arraignment on the uttering charge was to occur before the probation revocation hearing, Fisher agreed to "transfer" the retainer from the probation revocation case to the uttering case, until further payments could be made. Ultimately, Fisher paid at least five hundred dollars of the second retainer.
At the probation revocation hearing on August 25, 1980, respondent did not appear, sending in his place an associate with his firm, Patrick Patrissi. Patrissi, a member of the District of Columbia Bar, never before had handled a probation revocation; never before had spoken to respondent about the case; and, in fact, by memo from respondent's secretary, was requested to substitute for respondent only that morning. Due to his admitted ignorance of Super.Ct.Crim.R. 32, which grants a defendant the right to postpone a revocation proceeding pending resolution of new criminal charges if those charges are used in pressing the probation violation, Patrissi raised no objection when, based upon Fisher's rearrest, the court revoked probation and sent Fisher to jail.
While in jail, Fisher and his family attempted to contact respondent to request help. Respondent never returned the telephone messages left at his office. On one occasion, respondent's secretary informed Fisher when he called that, unless he fulfilled the retainer agreement, respondent would withdraw as his counsel. Some time later, respondent did withdraw from representing Fisher in the uttering case. Only after Fisher received new appointed counsel on this latter case was the erroneous revocation of his probation recognized and remedied by his release — more than six months later.
Respondent challenges the Board's rejection of his claim that he was denied a fair and impartial hearing before the Committee. After submission of the Hearing Committee's final report, respondent objected in his brief to the Board that a member of the Committee, Willie Leftwich, harbored a personal prejudice against him. According to respondent, this bias arose from the fact that he had replaced Leftwich as litigation counsel on a case from which the latter had been discharged. To support his claim, respondent proffered affidavits of the clients involved attesting to the discharge of Leftwich and pointed to a pattern of allegedly inordinate questioning during the Committee hearing by member Leftwich and chairman Webb. The Board, in its report, found respondent's allegations to be unwarranted. We agree.
To demonstrate a legally sufficient claim of personal prejudice, respondent was required to show facts: (1) which are material and are stated with particularity; (2) which, if true, would convince a reasonable person that bias exists; and (3) which show that the bias is personal, as opposed to judicial, in nature. In re Evans, 411 A.2d 984, 994 (D.C.1980).3 Nevertheless, other than the bald assertion that he replaced Leftwich after discharge of the latter by the clients, respondent demonstrates no material facts from which an inference of prejudice may be drawn. Indeed, even the fundamental fact that Leftwich was cognizant that respondent was his replacement is assumed; and respondent presents no convincing explanation for why this fact would be true. Further, accepting respondent's assumption that Leftwich knew who succeeded him as counsel, such knowledge, without more, does not establish the existence of a personal bias against respondent.
At the start of the Committee hearing, moreover, respondent was asked whether he had any challenges to the members of the Committee; his reply was, "None at all, Sir." In pressing his assertion of personal prejudice, respondent attempts to avoid the clarity of his response, claiming that at the time of the hearing he was unaware of Leftwich's purported conflict of interest. Nevertheless, similar to his inability to explain how, if at all, Leftwich knew that, after his discharge, respondent had replaced him as counsel, respondent fails to explain convincingly why, as successor counsel, he would not know that Leftwich was his predecessor.4
Given the unsubstantiality of respondent's proof of prejudice, the Board was correct in finding his claim to be unwarranted.
Respondent's second, and principal contention, is that the Board's findings, and the sanction it recommended, are unsupported by the weight of the evidence.
With regard to his representation of Willie Alexander, the Board concluded that respondent's failure to appear for trial on November 6-7 constituted a neglect of a legal duty entrusted to him, in violation of DR 6-101(A)(3), and conduct prejudicial to the administration of justice, in violation of DR 1-102(A)(5). Although the Board expressed its inclination "to be charitable of Respondent's assertion that he simply forgot that the trial of the case was scheduled for November 6," it found that this asserted lapse of memory was aggravated by several additional factors.
Foremost among these aggravating factors was respondent's apparently "cavalier" disregard of advice from Judge Murphy's clerk that one of his cases had been continued due to his absence. Respondent admitted receiving this information. Nevertheless, he did not check in with the court until the following day.5 As a result, court proceedings twice were delayed and his client's trial twice was continued. This caused a loss of valuable time to the court, its personnel, and to every other participant in the trial — including respondent's client and the government's witnesses.
While respondent asserted that he spent November 6 in the courthouse, occupied with matters before other judge.6 he did not avail himself of the "locator" procedure established by the Chief Judges This procedure was established to facilitate compromise between the often conflicting schedules of court and counsel. By not taking advantage of this procedure on the morning of November 6, respondent created, and then succumbed, to the exact scenario which the procedure was designed to prevent. For these reasons, the Board concluded that respondent's conduct on November 6 and 7...
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IN RE LYLES, 94-BG-1408
...that the willful failure to appear at a court hearing is subject to discipline. In re Robinson, 635 A.2d 352 (D.C. 1993); In re Alexander, 466 A.2d 447, 450 (D.C. 1983). The Hearing Committee concluded, however, that the evidence at the hearing failed to show by clear and convincing evidenc......
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In re Washington, 84-1549.
...— Respondent's pro bono work and Bar activities. In other similar neglect cases three months suspensions have been imposed, In re Alexander, 466 A.2d 447 (D.C. 1983) (Respondent neglected to appear for scheduled trial in one case and sent unprepared associate to hearing in another; three pr......
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Matter of Alexander, 84-1160.
...the findings of fact made by the Board unless they are unsupported by substantial evidence of record." Id. at 302; see In re Alexander, 466 A.2d 447, 448 (D.C.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1680, 80 L.Ed.2d 154 (1984); see also In re Fogel, 422 A.2d 966, 968 (D.C.1980). We hav......
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In re Lenoir
...by substantial evidence of record. D.C. Bar R. XI, § 9(g); see also In re Buckley, 535 A.2d 863, 865-66 (D.C. 1987); In re Alexander, 466 A.2d 447, 448 (D.C.1983), cert. denied, 466 U.S. 904, 104 S.Ct. 1680, 80 L.Ed.2d 154 (1984). In imposing discipline, this court makes the ultimate determ......