In re Paul T. Mensah
262 A.3d 1100
D.C.2021Background
- Respondent Paul T. Mensah admitted reckless misappropriation of entrusted funds in two matters, impermissible fee-splitting, and failure to keep proper records.
- Mensah and Disciplinary Counsel reached a negotiated-discipline agreement calling for a three-year suspension with reinstatement conditioned on demonstrating fitness to practice.
- The Hearing Committee and the Board on Professional Responsibility recommended approval, acknowledging that under In re Addams disbarment would ordinarily follow reckless misappropriation but concluding the negotiated process permits some flexibility.
- Mitigating facts: Mensah self-reported the misconduct, cooperated fully, hired a bookkeeper at his own expense, deposited personal funds to reimburse the misappropriated amounts, had no prior discipline, and no client complaints or demonstrable harm were shown.
- The court held that the negotiated-discipline process can, in certain circumstances, permit a sanction less than disbarment for reckless misappropriation and approved the three-year suspension with a fitness requirement.
Issues
| Issue | Disciplinary Counsel's Argument | Mensah's Argument | Held |
|---|---|---|---|
| Whether negotiated-discipline can justify a sanction less than Addams requires for reckless misappropriation | Negotiated process must allow some flexibility to incentivize resolution and credit mitigation/acceptance of responsibility | Agreed — the negotiated disposition is appropriate given mitigating facts | Yes. Negotiated discipline may permit a sanction less than disbarment for reckless misappropriation in some cases |
| Whether the agreed sanction is justified and not unduly lenient | The three-year suspension with fitness condition is justified given mitigating factors and procedural safeguards | Agreed to the sanction | Held justified and approved |
| Whether court must treat negotiated-discipline opinions as binding precedent for contested cases | Negotiated dispositions serve different purposes and may be less stringent; should be allowed limited flexibility | N/A (Mensah concurred) | Court: negotiated-discipline decisions are not generally citable in contested cases and may differ from contested-discipline outcomes |
| Standard of review and degree of deference to Board/Hearing Committee | If no exceptions filed, court gives deference but will scrutinize appropriateness | N/A | Court: substantial deference applies in negotiated cases but court retains authority to refuse approval if sanction is unjustified |
Key Cases Cited
- In re Addams, 579 A.2d 190 (D.C. 1990) (presumption of disbarment for misappropriation absent extraordinary circumstances)
- In re Kersey, 520 A.2d 321 (D.C. 1987) (example of extraordinary circumstances permitting lesser sanction)
- In re Viehe, 762 A.2d 542 (D.C. 2000) (deferential review in uncontested/negotiated discipline)
- In re Harris-Lindsey, 19 A.3d 784 (D.C. 2011) (court declined to approve negotiated discipline where facts warranted further development)
- In re Rigas, 9 A.3d 494 (D.C. 2010) (limits on negotiated discipline where statutory disbarment issues arise)
- In re Rachal, 251 A.3d 1038 (D.C. 2021) (court does not defer to Board on questions of law)