Matter of Knox, M-71('81).

• Decision Date: 12 January 1982
• Docket Number: No. M-71('81).,M-71('81).
• Citation: 441 A.2d 265
• Parties: In The Matter of George F. KNOX, Sr., A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

441 A.2d 265

In The Matter of George F. KNOX, Sr., A Member of the Bar of the District of Columbia Court of Appeals.

No. M-71('81).

District of Columbia Court of Appeals.

January 12, 1982.

No appearance was entered on behalf of respondent.

Fred Grabowsky, Bar Counsel, Washington, D. C., filed the Report and Recommendation of the Bd. on Professional Responsibility.

Before HARRIS and PRYOR, Associate Judges, and YEAGLEY, Associate Judge, Retired.

HARRIS, Associate Judge:

The Report and Recommendation of this court's Board on Professional Responsibility in a disciplinary matter involving George F. Knox, Sr., is before us for review. The Board recommends that respondent be suspended from the practice of law for six months. We accept the Board's findings of fact as being supported by substantial evidence of record, but conclude that its recommended disposition is unwarranted on the facts of this case. We conclude that a three-month suspension is the appropriate sanction.

I

The Specification of Charges attached to the Petition Instituting Formal Disciplinary Proceedings, dated January 17, 1980, charged respondent with violations of DR [Disciplinary Rule] 6-101(A)(3) and DR 7-101(A)(1). (2), and (3) in connection with his representation of Carolyn Minor over a period of nine years.¹ The Hearing Committee conducted a hearing on June 17, 1980, and filed its Report with the Board on August 13, 1980.

The facts may be summarized as follows: In November of 1970, respondent agreed to represent Minor in her effort to recover damages for an injury she sustained on October 13, 1970, at her place of work. Respondent and Minor discussed the possibility of pursuing both a claim through Workmen's Compensation and a personal injury lawsuit against one of Minor's fellow employees. Minor received a partial disability payment for approximately three and a half weeks after the accident, but respondent took no action to forward Minor's claim for Workmen's Compensation through the proper channels. Respondent also failed to take any action on the personal injury claim before the statute of limitations expired. Respondent maintained that he exercised his judgment not to follow through on the personal injury suit, but Minor testified that respondent never communicated his unilateral decision to her and, thus, she did not have notice that this claim was not being pursued. Respondent did not offer any evidence to refute her testimony. From the date of Minor's injury to the time she filed her complaint with the Office of Bar Counsel (a period of nine years), Minor had only two visits with respondent.² She never received any correspondence from respondent and her telephone calls to him were not returned.

After hearing testimony from Minor and from respondent, the Hearing Committee concluded:

The area of controversy is narrow. Mr. Knox states that he determined that a claim against the employer based on the liability of a fellow employee was unsupportable. Mrs. Minor believed the claim was being pursued. Mrs. Minor's testimony is unrefuted.

The Hearing Committee found that respondent had neglected the legal matter entrusted to him, thereby violating DR 6-101(A)(3), and that his client had been prejudiced by his neglect.³ In recommending that respondent be suspended from the practice of law for six months, the Hearing Committee considered respondent's prior disciplinary record, which consisted of an informal admonition for violation of DR 6-101(A)(3) in a situation similar to the instant case.⁴ It used as guidance disciplinary sanctions suggested by the Board in previous cases.

II

In response to the Hearing Committee's Report, respondent filed a brief with the Board in which he characterized the recommended discipline as "harsh, unjust, arbitrary, and punitively excessive."⁵ The Board filed its Report and Recommendation on March 18, 1981. It concurred in the Hearing Committee's findings of fact and its conclusion with respect to respondent's violation of DR 6-101(A)(3). The Board concluded:

Respondent held himself out to Mrs. Minor as her attorney for nearly nine years. The Hearing Committee found that during this entire time Mrs. Minor believed that respondent was pursuing her claim. Mrs. Minor based this belief on representations made to her by respondent. Indeed it was respondent's position throughout these proceedings that he was actively pursuing Mrs. Minor's interests. The record tells a different story. As found by the Hearing Committee, respondent did nothing on the Workmen's Compensation after November, 1970, and allowed the statute of limitations to extinguish the tort claim. Respondent's abuse of his client's trust is incompatible with the standards which must be adhered to in the practice of law in the District of Columbia. We thus recommend that respondent be suspended from the practice of law for six months.

One member of the Board concurred in the Report of the Board but would have recommended a suspension of three months, reasoning that "although respondent's neglect cannot be condoned, his conduct is mitigated by the complainant's own failure to display any sense of urgency concerning her case as evidenced by her failure to bring respondent's inaction to the attention of the Board or to retain other counsel for a period of nearly nine years."

Rule XI, § 7, of the Rules of this Court Governing the Bar permitted respondent to file exceptions to the Report with the court within 20 days of the date of the filing of the Report. Respondent has not made any submission to the court.

III

Under our standard of review as set forth in § 7(3) of Rule XI, the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall 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.

The Rule thus affords the Board considerable discretion in disciplinary matters. "The rule requires that we enforce a general sense of equality in the sanctions handed out, but it otherwise commands that we should respect the Board's sense of equity in these matters unless that exercise of judgment proves to be unreasonable." In re Haupt, D.C.App., 422 A.2d 768, 771 (1980), quoting In re Smith, D.C.App., 403 A.2d 296, 303 (1979). While we strive to observe the Rule's mandate to achieve consistency in the disposition of disciplinary cases, each case must be decided on its own particular facts. In re Russell, D.C.App., 424 A.2d 1087, 1088 (1980). We recognize that instances of misconduct in...