Matter of Fogel, M-35-80.

• Decision Date: 01 August 1980
• Docket Number: No. M-35-80.,M-35-80.
• Citation: 422 A.2d 966
• Parties: In the Matter of Martin FOGEL, a Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

Page 966

422 A.2d 966

In the Matter of Martin FOGEL, a Member of the Bar of the District of Columbia Court of Appeals.

No. M-35-80.

District of Columbia Court of Appeals.

August 1, 1980.^*

No appearance was entered on behalf of respondent Martin Fogel.

Fred Grabowsky, Bar Counsel, Washington, D. C., filed the Findings and Recommendations of [the] Board on Professional Responsibility.

Before GALLAGHER, NEBEKER and HARRIS, Associate Judges.

PER CURIAM:

This matter is before the Court for our consideration of the "Findings and Recommendations of [the] Board on Professional Responsibility." Essentially, the Board adopted the findings of its Hearing Committee, but, as explained below, it recommends a more stringent sanction than did the Committee. We accept the findings of fact as being supported by substantial evidence of record, and adopt the Board's recommended suspension of the respondent attorney for a year and a day.

The Hearing Committee's findings of fact, which were accepted and repeated virtually verbatim by the Board, were carefully detailed. While we do not make a thorough statement of the facts, an abbreviated summary thereof is deemed appropriate. (That summary is supplemented by certain quoted material which follows.)

Douglas Kelley was discharged from his employment by the District of Columbia school system in January 1974. He asked the American Civil Liberties Union to assist him in an action against the School Board; the ACLU in turn asked respondent Fogel to interview Kelley. Respondent then undertook the representation of Kelley, and did so at all times thereafter without fee.

Successive legal steps were taken on Kelley's behalf by respondent. An equal employment opportunity argument was asserted in a hearing before the School Board. When the School Board did not render a decision, a comparable action was brought unsuccessfully in the United States District Court for the District of Columbia. Thereafter respondent and Kelley decided to bring an action in the Superior Court of the District of Columbia against the individual members of the School Board. It was during that proceeding that Kelley's difficulties with his attorney began to become significant. Respondent failed to make certain filings and failed to appear for certain court dates; he later admitted that his excuses for nonattendance were fictional.

The Superior Court proceeding ended in a dismissal of the complaint. An appeal was taken to this court. A series of transgressions were committed by respondent while the appeal was pending, including failures to file pleadings and affirmative misrepresentations to court personnel.¹ In recommending to the Hearing Committee what he considered to be the appropriate discipline, Assistant Bar Counsel stated in part:

Respondent's conduct involves calculated falsehoods, before the Court, the Committee and his client. His demonstrated ethical insensitivity makes him too great a risk to be entrusted with the affairs of trusting clients. Respondent's violations of DR's 6-101(A)(2) and (3) and DR's 7-101(A)(1),(2) and (3), alone, would result in significant discipline. Respondent's false statement to the Court, in violation of DR 1-102(A)(4) along with the falsehoods stated by him should justify the ultimate sanction. Joined together, these cavalier actions toward client and court persuasively indicate that the public, the courts, and the profession need the most stringent protection from further likely transgressions.

In addition to the instant misconduct, the respondent has had significant disciplinary sanctions imposed against him on prior occasions. Disbarment is the only proper remedy for an attorney who does not tell the truth, does not do the work he promises, and is deceitful in covering up his shortcomings.

The petition which had initiated the disciplinary proceeding charged five violations of the Code of Professional Responsibility. The Hearing Committee concluded that three of those charges were substantiated. It determined that respondent Fogel had violated DR 6-101(A)(3) in neglecting the appeal; that he had also violated DR 7-101(A)(1), (2), and (3) "in that [as charged] he intentionally failed to carry out his contract of employment and seek the objectives of his client, to the prejudice of his client in that he did not pursue the appeal"; and that he had violated DR 1-102(A)(4) "in that [as charged] his excuse for not filing his brief was false and thus constituted conduct involving dishonesty, fraud and deceit."

In making its "Recommendation for Disciplinary Action," the Hearing Committee stated in part:

Additionally, the Committee believes Mr. Fogel has been untruthful to his client, to the Court, and to the Committee. Indeed, Mr. Fogel admitted lying to the court. . . .

The Committee also noted that respondent Fogel recently had been disciplined in both the District of Columbia (by a letter of reprimand for neglecting a legal matter entrusted to him) and in Virginia (for reasons not contained in the record before us). It recommended that respondent be suspended "for six months, and thereafter until" four prescribed conditions were satisfied. The last of those recommended conditions was as follows:

Fourth, that Mr. Fogel provides a statement from a practicing psychiatrist in the District of Columbia that he has examined respondent with particular regard to the behavior reflected in this case and in the other disciplinary cases and that as a result of treatment or otherwise, it is his opinion that respondent is capable of conducting a law practice without the recurrence of such problems.

The Board had no disagreement with the Hearing Committee as to its findings or conclusions. It differed only on its recommended discipline. The Board concluded its Findings and Recommendations as follows:

The Board agrees [with the Hearing Committee] both on the need for suspension of the Respondent and on the need for some proof of his rehabilitation before he is readmitted to practice. But under [D.C.App.] Rule XI, Sec. 3(2), proof of such rehabilitation cannot be required if the suspension is for one year or less, and the Board is of the opinion that the facts disclosed in this case mandate suspension for not less than one year and a day in any event. With such suspension Respondent will be required to make an adequate showing of rehabilitation before he can be readmitted to practice, pursuant to Rule XI, Sec. 21.

Accordingly, the Board recommends that Respondent be suspended from the practice of law for a year and a day.

The record in this case as filed with the court by Bar Counsel reflects service of the Findings and Recommendations of the Board upon respondent Fogel. Under § 7 of Rule XI, respondent had 20 days within which to file exceptions thereto (or to request an additional 20 days within which to file exceptions). Respondent has made no submission to the court.

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