189 A.3d 715
D.C.2018Background
- Michael Avery's firm handled a 2004 auto-injury matter for Mary Brown; Avery delegated day-to-day work to a paralegal and did not personally supervise the file.
- The firm sent settlement demands that omitted liens, lost-wage claims, ER charges, and pain-and-suffering; the client was not consulted or sent copies of demands.
- A paralegal accepted GEICO's $8,800 offer on July 28, 2005; the firm deposited the check to its IOLTA account without client consent or a signed release and did not notify Brown until many months later.
- Brown objected when informed, instructed return of funds and no suit; respondent later returned the money to GEICO and the successor attorney filed suit before the statute ran. Brown filed an ODC complaint; she later died before the hearing.
- The Hearing Committee found multiple Rule violations (competence, communication, diligence, failure to abide by client decisions), credibility problems and misleading statements to Disciplinary Counsel, and recommended a 45-day suspension.
- The Board adopted the findings, credited respondent's voluntary Practice Management Advisory Service (PMAS) review as mitigation, and recommended a 45-day suspension stayed for six months probation; the court imposed a 60-day suspension with 30 days stayed for one year probation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent neglected and failed to supervise client matter and thereby violated Rules on competence, diligence, and communication | Hearing Committee/Board: Respondent delegated without proper oversight, failed to inform client of settlement offers, and neglected key aspects of representation | Respondent disputed some factual findings (e.g., abdication, false testimony) but did not ask court to overturn findings and accepted sanction recommendation | Court adopted Committee/Board findings: respondent violated Rules 1.1, 1.2, 1.3, 1.4 and related provisions based on clear-and-convincing evidence |
| Whether respondent made misleading statements to Disciplinary Counsel and gave false testimony before the Committee | Disciplinary Counsel and Committee: Respondent mischaracterized the settlement and gave not-credible/false testimony | Respondent contested some findings but did not seek reversal; claimed some statements based on office policies rather than personal knowledge | Court accepted Committee/Board credibility findings that respondent made misleading statements and gave false or not-credible testimony |
| Appropriate sanction balancing mitigation (PMAS review, contrition) and aggravation (prior censure, dishonesty, client prejudice) | Board: PMAS assessment and contrition mitigate; recommend 45-day suspension stayed for probation | Disciplinary Counsel: recommended an actual suspension (at least 45 days) to protect public and deter; characterized Board’s stay as too lenient | Court imposed a 60-day suspension with 30 days stayed for one-year probation, aligning with precedent for similar misconduct to ensure consistency and deterrence |
| Whether conditions of suspension/probation should include PMAS follow-up or other requirements | Board conditioned stay on probation and noted PMAS review already done; recommended probationary conditions | Disciplinary Counsel sought stronger conditioning or actual suspension | Court required only compliance with Rules during probation (PMAS assessment already done) and allowed respondent to schedule actual suspension start within 90 days to minimize client disruption |
Key Cases Cited
- In re Speights, 173 A.3d 96 (deference to Board factual findings; adopt Board sanctions unless inconsistent)
- In re Chapman, 962 A.2d 922 (imposing 60-day suspension, 30 days stayed for similar neglect and dishonest statements)
- In re Downey, 162 A.3d 162 (sanction purpose: protect public and deter misconduct)
- In re Brown, 851 A.2d 1278 (mandate for consistency of sanctions)
- In re Ontell, 593 A.2d 1038 (consider client prejudice and allow delayed start of suspension to minimize disruption)
- In re Outlaw, 917 A.2d 684 (60-day suspension for neglect and dishonesty)
- In re Landesberg, 518 A.2d 96 (sanction consistency and structural considerations)
- In re Coleman, 162 A.3d 159 (value of PMAS assessment and directed remediation)
- In re Murdter, 131 A.3d 355 (PMAS guidance considered in sanctioning)