Matter of Sheehy, M-59-80.

• Decision Date: 07 January 1983
• Docket Number: No. M-59-80.,M-59-80.
• Citation: 454 A.2d 1360
• Parties: In the Matter of Donald J. SHEEHY, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

454 A.2d 1360

In the Matter of Donald J. SHEEHY, A Member of the Bar of the District of Columbia Court of Appeals.

No. M-59-80.

District of Columbia Court of Appeals.

January 7, 1983.

Before NEWMAN, Chief Judge, KELLY, KERN, NEBEKER, MACK, FERREN, PRYOR, BELSON and TERRY, Associate Judges.

KERN, Associate Judge:

D.C.App.Bar R. XI, § 7(3) provides in pertinent part:

[T]he 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.

That the respondent attorney here engaged in professional misconduct is not in dispute and hence there is no challenge to factual findings by the Board on Professional Responsibility. We accept the Board's findings of fact as being supported by substantial evidence of record and incorporate herein as an Appendix those findings. We conclude, however, that the Board's recommended disposition of disbarment is unwarranted on the facts of the case. We conclude that a suspension for two years is the appropriate sanction. We deem suspension rather than disbarment as being more consistent with other dispositions in disciplinary cases involving comparable conduct and as otherwise warranted under the circumstances.

Respondent's professional misconduct consisted of neglecting the legal matter entrusted to him by his client in violation of DR 6-101(A)(3) and making serious misrepresentations to both his client and Bar Counsel in violation of DR 1-102(A)(4) and (5). The Board, noting respondent's prior record of a private reprimand for neglecting a client and misrepresenting to that client the status of his matter and of an informal admonition from Bar Counsel for neglecting to investigate and pursue a traffic accident claim, concluded that "respondent has shown . . . he . . . will not apply the standards of ethical conduct and of fiduciary responsibility that are sine qua non to public confidence in the legal profession."

The Board relies heavily on two unreported decisions, i.e., In re Duesterdick (D-9-75) Order of Disbarment dated August 15, 1975, and In re Spencer (D-36-80) Order of Disbarment dated February 13, 1980.¹ In re Spencer was based upon the reciprocal discipline rule and, hence, this court did not independently review findings and the disposition in that matter. In re Duesterdick dealt with an attorney who not only allowed the Statute of Limitations to run in a negligence case he was handling but also falsely testified before an Inquiry Committee.

As we have said before there are no easy equations in these matters. While we strive to observe the mandate of Rule XI § 7(3) to achieve consistency in the disposition of disciplinary cases, each case must be decided on its own particular facts. In re Knox, D.C.App., 441 A.2d 265 (1982), quoting In re Russell, D.C.App., 424 A.2d 1087, 1088 (1980).

The reported disciplinary case that seems most closely on point is In re Fogel, D.C. App., 422 A.2d 966 (1980). In that case, respondent neglected an appeal and then lied to his client, the Hearing Committee and the court. Fogel also had a record of prior discipline. He was suspended for one year and a day.

In In re Russell, supra, we suspended the respondent for six months after he neglected a personal injury suit for three years, failed to return his client's file, and failed to cooperate with Bar Counsel.

In In re Smith, D.C.App., 403 A.2d 296 (1979), we suspended the respondent for eighteen months for neglect of two civil matters and for misrepresentation to his clients concerning the cases. He had no prior discipline.

In In re Haupt, D.C.App., 422 A.2d 768 (1980), respondent was suspended for three years for two instances of misconduct: (1) neglect and misrepresentation in a divorce proceeding, and (2) misrepresentation in telling a Maryland sheriff that the defendant's fiancee was his assistant so that she could enter the cellblock. Haupt had been previously suspended for 30 days and received a formal admonition.

In In re Willcher, D.C.App., 404 A.2d 185 (1979), respondent was suspended for five years for conduct involving twelve separate matters including serious neglect.

In reaching our conclusion that respondent be suspended for two years is more appropriate, we also note the various factors taken into account by the Committee: that respondent "did fully disclose all the pertinent facts in this matter after receiving the follow-up letter from [Bar Counsel]" and respondent's client did receive an amount of money representing an estimate of what she might have received on her accident claim.

We are satisfied that suspension for two years is proper under our Rule.

Accordingly, it is ORDERED that Respondent, Donald J. Sheehy, be and he hereby is, suspended from the practice of law for two years, effective 30 days from entry of this opinion.

So ordered.

APPENDIX

BOARD ON PROFESSIONAL RESPONSIBILITY DISTRICT OF COLUMBIA COURT OF APPEALS

Bar Docket Number: 507-78

IN THE MATTER OF DONALD J. SHEEHY

REPORT AND RECOMMENDATION OF BOARD ON PROFESSIONAL RESPONSIBILITY

The respondent attorney has admitted serious neglect and incompetent handling of a legal matter entrusted to him in violation of DR 6-101(A)(3). He has also admitted making written statements both to his client and to Bar Counsel which involved serious misrepresentations and deceit, in violation of DR 1-102(A)(4) and (5). The only real issue before this Board is the scope of the sanction which we are called upon to recommend to the Court.

All of the essential facts in these proceedings are found in a written stipulation between the parties, court records, and letters written by the respondent. While there are some variances between the verbal testimony given by the complaining witness and that given by respondent they do not affect the crucial admissions which are found in the documents referred to.

We turn now to a recital of the significant events. On March 8, 1974, Ms. Beverly A. Telfaire was involved in a minor automobile accident in the District of Columbia. The driver of the other vehicle was one Raymond Chavis; the owner was Darling Delaware Co., Inc. Ms. Telfaire was treated by her physician, Dr. Thomas Dent, for back injuries and she claims that she missed at least twelve days of work.

Shortly afterwards, Ms. Telfaire called the respondent to discuss the accident. Respondent told her that he would send her an authorization form and retainer agreement and he claims he did so. There is confusion in the testimony as to whether Ms. Telfaire received the retainer agreement and, if so, whether she mailed it back to the respondent. He testified he did not receive it, but both parties agree nevertheless that an attorney/client relationship was established in 1974. There was some shifting of addresses on the part of both parties during the next year. Claiming that she was unable to reach respondent by telephone, Ms. Telfaire on March 8, 1976, filed a complaint with Bar Counsel which was formally docketed. Bar Counsel thereupon found a new address for respondent and advised him of Ms. Telfaire's complaint, and on April 7 Ms. Telfaire met with respondent in his office and executed another retainer agreement and an authorization form permitting respondent to get information from Ms. Telfaire's doctor. At respondent's urging she then asked Bar Counsel to terminate his investigation stating that she and respondent had reached an understanding.

The problems with communications between Ms. Telfaire and respondent continued. In a January 26, 1977, letter, however, respondent stated to Ms. Telfaire that "[a]t the present time I am trying to move Mr. Dent toward a settlement so we can avoid filing suit."¹ This was, of necessity, a misrepresentation as Mr. Dent was in fact Dr. Dent, the physician who treated Ms. Telfaire and not a proper party defendant.

On March 7, 1977, one day before the statute of limitations on Ms. Telfaire's claim would expire, the respondent filed a personal injury and property damage action on her behalf in Superior Court, naming Thomas M. Dent as the sole defendant, and alleging that he was the driver of the vehicle that struck Ms. Telfaire. On the same day respondent obtained a summons to be served on Thomas M. Dent. Respondent throughout this period was fully aware that Thomas M. Dent was Ms. Telfaire's doctor and not the driver of the automobile, and the police accident report which was readily available showed the owner of the other automobile involved to be the Darling Delaware Co., Inc. and the driver to be Raymond Chavis.

When respondent filed his complaint, he hand-lettered "and John Doe" next to the typed name of the defendant in the caption of the pleading. This hand lettering apparently was written after the complaint had been accepted for filing, for it does not appear on the caption of the court jacket.

One month after the complaint was filed, on April 7, 1977, Judge Johnson granted an oral motion of the respondent for leave to file an amended complaint naming the proper parties defendants, i.e., Raymond Chavis and Darling Delaware Co., Inc. Respondent says he gave copies to employees of Alarm Masters Security Systems, Inc. (which company was also a client of respondent) for service on the defendants. No service was effected, and the respondent had a falling out with Alarm Masters Security Systems, Inc. (on another matter) and apparently forgot all about pursuing Ms. Telfaire's claim.

In October, 1978 respondent was offered a position with the District of Columbia government as Deputy Chief of the Office of Judicial Affairs to draft legislative and legal opinions and to act as liaison to the offices of the Corporation Counsel and the U.S. Attorney. He accepted the position and began to wind up his private law practice.

Ms....