*2 NEWMAN, and TER- Before BELSON RY, Judges. Associate PER CURIAM: matter, attorneys Wil- In Parsons con- liam Reback and Charles C. Report test the and Recommendations Responsibility. the Board on Professional majority A of the Board concluded that provi- several attorneys had each violated Responsi- sions of the Code Professional bility. recommended year suspended, that both be Reback for days. for 30 and Parsons findings reject of the Board’s of viola- one disagree with partially tion Reback and sanction, recommendation as the Board’s attorneys ordering that both instead day. for a all accept Board’s find- respects other adopt ings and its recommendations. firm of Re- Rosemary Lewis retained the pursue her divorce Parsons to back and claim. While Reback was the attor- issue within six months. Two weeks later ney to spoke, complaint whom Lewis ever had the reinstated. responsibility took for the case. He filed a reinstatement, Five months after Superior verified in the Court. discovered later, Some months the court issued a had been dismissed and a filed *3 warning pursuant Super.Ct.Dom. notice signature. to over her falsified She asked 41(f), Rel.R. which provides that a case Reback and Parsons to withdraw as her counsel, is not at within six they months after its They did. returned to filing date shall be dismissed after notice to her all paid the fees she had them. Owing attorneys. apparently ato de- Hearing The hearing Committee held a case-handling fect the firm’s procedures, at which Reback and Parsons testified. neither Reback nor Parsons saw notice. They cooperated fully Hearing with the The case was dismissed without expressed Committee and remorse for their knowledge. Hearing actions. The Committee found Shortly dismissal, after the Lewis’ they 6-101(A)(3)(ne- broth- had violated D.R. telephoned er inquire matter) Reback to glect legal about the of a and D.R. 1- progress (conduct of 102(A)(5) the case. Reback and prejudicial Parsons to the admin- then discovered that the case justice). had istration of The Committee found They dismissed. did not tell 7-101(A)(l) (intentional Lewis or her no violation of D.R. Instead, they prepared brother. a second objectives), failure to seek client’s lawful complaint, identical in 7-102(A)(5) to the knowing substance D.R. false statement first. fact), (conduct 1-102(A)(4) of law or D.R. or fraud, deceit, dishonesty, involving or mis- The complaint purported to be representation).1 recommending In a sanc- verified Lewis. of obtaining Instead tion, Hearing put great Committee signature, however, signed Lewis’ Reback weight mitigating on the factors the of- complaint Lewis’ name to the pres- fenses, especially the fact that the attor- of ence Parsons. lawyers— One the two neys had shown remorse and the fact that secretary or a acting at their direction— years Reback in of practice his 30 then had complaint notarized. Whoev- Parsons his 15 had never before faced er notary took the to the neces- disciplinary Hearing charges. The Com- sarily represented signature that the repri- mittee recommended Board genuine. complaint, Parsons filed the lawyers. mand the knowing signature that the was false. The Bar Counsel recommended that the partners assigned The then the case to adopt Board Committee’s find- They an associate. told the associate to ings its conclusions on violations of the questions. if come them he had Other recommended, however, code. He instruction, giving than him Board public increase the sanction to cen- supervise He him. had trouble obtain- sure. required proofs publication majority notice Lewis’ husband. After another A Board saw case court, warning differently. from the com- the second nine mem- Five Board plaint put dismissed failure to both bers concluded that Reback Par- 7-101(A): lawyer 1. cited rules read in relevant D.R. A shall not intentional- part ly: as follows. (1) objectives Fail to seek lawful of his 101(A): lawyer A not: D.R. shall 6— reasonably through client available means (3) Neglect matter entrusted him. permitted by Disciplinary Rules. law 1-102(A): lawyer A D.R. shall not: 7-102(A): representation of a (4) involving Engage dishonesty, in conduct client, lawyer fraud, deceit, shall not: misrepresentation. or (5) Knowingly (5) false make a statement of Engage prejudicial in conduct that is fact. justice. law or the administration of (5) 1-102(A)(4) responsibility owed to sons bad violated D.R.’s the client. The (conduct fraud, involving concept ordinary negligence de- dishonesty, is differ- ceit, Neglect usually ent. misrepresentation; or and conduct involves more than single Neglect prejudicial justice), act or omission. administration cannot 6-101(A)(3) legal matter), or (neglect found if the acts omissions com- 7-102(A)(5) plained of (knowing false statement of were inadvertent or the result fact), judgment good law had of an made in and that Reback alone error (intentional 7-101(A)(l) fail- faith. violated D.R. objectives).2
ure
Comm,
to seek client’s lawful
ABA
on Ethics and Professional
that this
recommended
(1973).
Op.
Responsibility, Informal
suspend
a year
court
Reback for
things,
Among other
days.
and Parsons for 30
period of time
failed over an extended
put
at issue and failed
*4
minority
The four-member
of the Board
put
sec-
to ensure that their associate
the
concluded that both Reback
Parsons
Thus
committed
ond one
issue.
1-102(A)(5),
only
had
6-
violated
D.R.’s
act or omission.”
single
more than “a
101(A)(3),
7-102(A)(5).
minority
The
unusually
an
showing
argue
saw the record as
that
Reback and Parsons
the
large
The
mitigating
number of
factors.
them
improperly
Board
held
accountable
dissenting
therefore
recom-
ethical breaches. The
members
for their associate’s
attorneys
vio
public majority
impute
mended that
receive
not
the associate’s
both
did
Rather it
partners,
to
however.
censure.
lations
the
the
mistakes
evidence
viewed
associate’s
findings
affirm
viola-
We
the Board’s
him;
supervise
partner’s
to
of the
failure
finding
tions
than
«that Reback
other
its
the
supervise,
that failure
combined with
to
guilty
of intentional failure to seek his
neglect
partners’
lapses, constituted
other
objectives,
lawful
and conclude that
client’s
6-101(A)(3).
re
D.R.
See In Alexan
under
attorneys
both
should
der,
(D.C.1983)(attorney vio
A.2d
will devel-
day.
Our discussion
delegating re
6-101(A)(3) by
lated D.R.
holdings
op first the basis for our
concern-
inexperienced
sponsibility
to
for a case
an
and second the consider-
code violations
failing
prepare
to
the
associate and then
upon
proper
the
sanction.
ations that bear
attorney’s
representation;
associate for the
I.
violations
Code
errors,
rectify
failure
failure to
associate’s
6-101(A)(3):
Neglect
A. D.R.
aof
hearings, and failure to
appear
for court
lawyer.
to the
matter entrusted
sup
telephone
return
calls also
client’s
Committee,
violation),
finding
ported
the
The
the
Coun-
Board’s
—
denied,
U.S. -,
sel,
minority of
104 S.Ct.
both the
cert.
(1984).
the same time
their client from
case as he had the
“forget” the second
facts,
learning
Respondent
the true
had
inescapable
The conclusion
one.
possibly
to commit two unlawful and
intentionally
Respondent
First,
Reback,
Respondent
criminal acts.
supervising
minimal
his
failed
assume
presence
Parsons,
partner
lawyer.
Mrs. Lewis’
responsibilities as
signed
purport-
his client’s name to what
original]
[Emphasis in
ed to be his client’s own written oath.
attorneys will
opinions
Our
show that
Secondly,
notary public
had to be in-
neglectful
held not
to have
presumably
representa-
duced
false
intentionally
to seek
also to have
failed
genuineness
tions as
Mrs. Lew-
objectives if the
client’s lawful
signature,
it.4
purported
verify
is’
neglect
demonstrably
of their
were
aware
pervasive that
neglect
if
was so
7-101(A)(l):
D. D.R.
Intentional
fail-
of it.
aware
For
must have been
objectives
ure to seek lawful
*6
422 A.2d
example,
Haupt,
770
through reasonably
client
avail-
I)
curiam),
(D.C.1980)
(per
shows
(Haupt
able means.
neglect
attorney’s
of his
that an
awareness
finding, applica-
We reverse
Board’s
important
finding
he violated
to a
that
Reback,
only to
of violation of D.R.
ble
101(A)(1). There
affirmed the
D.R.
we
7—
7-101(A)(l).
Hearing
Committee ex-
Hearing
Committee
violation because
that
clear from the
plicitly found
“[i]t
respondent was more than
had found “that
Respondents
that
were not aware
evidence
fully
merely neglectful; he was
aware
neglect.” We can affirm the
a divorce for
obligation
to seek
[his
contrary finding only
sup-
if it is
Board’s
422
to do so.”
and of his failure
client]
by
evidence. It was not.
ported
substantial
Haupt,
re
involved one client and one The Board concluded that Reback pervasive cannot be deemed so it greater deserved a sanction than Parsons showed that he must have intended to ne- for three stated reasons: Reback violated glect that case. not; 7-101(A)(l), while times, spoke many neglect Reback pervasiveness Awareness her, spoke while Parsons never so the neglect are of course not evi- deception neglect were more Reback’s dence from can which one infer that attor- Parsons’; responsibility than and Reback neys intentionally failed to advance their directly responsible signature for the clients’ interests. example, For evidence oath, falsification and false while Parsons a lawyer fabricated excuses for his only ancillary responsibility. had neglect may support also that his neglect was conscious and intentional. doWe not share the Board’s views on See, e.g., In re Fogel, supra, 422 A.2d at reason, point. reject the first 967. Here there is no evidence that Re- course, because hold Reback was falsely back excused his to super- failure not shown to have violated D.R. 7- vise associate. 101(A)(1). Thus two commit- ted identical substantive violations. We that, The Board concluded because Lew- agree also cannot that Reback was ulti- telephoned is’ every brother few mately responsible neglect more for the weeks, Reback forgotten could have tell the failure to Lewis of the ignored about case and so must have *7 status of her case. While it is true that intentionally. frequent reminders spoke only probably Reback and negligence make Reback’s egregious, more regarded lawyer, him as her Parsons was but, even when combined with the other complaint the pressing entrusted with evidence, they relevant cannot be found to obliged to to it and was see that the client provided clear convincing have and evi- the progress. was aware of case’s More- dence of intent. We conclude that over, there no for distinguishing basis holding Board’s Reback violated between Reback’s and Parsons’ failures to 7-101(A)(l) not supported by clear and supervise the associate to whom the law- convincing evidence. yers delegated responsibility for the second II. Sanction complaint. Finally, think that Reback Having equally responsible concluded that and Par- and Parsons were for 6-101(A)(3), signature sons violated D.R.’s 1- the false and false oath 102(A)(5), 7-102(A)(5), 1-102(A)(4), notary. actually signed and and While Reback name, pres- that Reback did not violate D.R. 7- it was Lewis’ done Parsons’ 242
ence, respondents prosecuted he then filed the with were If court, knowing signature forgery uttering was on the crimes of case, who undisputed false. The evidence did not show took facts of this real notarized, the second to be so we controversy justiciable would over the notary defraud, cannot know who assured specific intent to for the genuine. signature was basically undisputed other elements are if undisputable. We have no doubt that impose We hold that to different sanc- convict, jury were to this court would sus tions be to two would a reasonable tain the conviction because dispositions “inconsistent authorize guilt juror, acting reasonably, could find as comparable conduct” in violation of D.C. uttering. forgery to both then, 7(3). question, Bar R. XI re- identical sanction the two should what discipline appropriate under What ceive. there has been these circumstances—where presented tell, with a Re- and, We are case where prosecution as far as we can no spondents seriously neglected a client’s le- likely; where the evidence none is matter; gal repeatedly misled her as forgery sustain conviction would thereof; and, status to conceal their defal- uttering specific intent defraud a with her, forged from her name to a cations previously they had ne client whose case represented complaint; falsely verified were ob glected, if such a conviction notary signature genu- was public that the impression question of first tained—is a ine; pleading and filed the falsified with looked such this court. We have Superior Court. (D.C. A.2d 1360 Sheehy, as cases In re (D.C. 1983); A.2d Haupt, 422 the criminal of The elements of (D.C. Smith, A.2d 1980), and In re here, are as forgery, applicable fense of as 1979), majority. as the Board We find did follows: helpful, for particularly cases none those part writing 1. in some That the constituting of them involved conduct none defendant; falsely made criminality. have examined a likely falsely 2. made the That defendant without number of our other cases writing specific intent to defraud However, there is meaningful help. complain- authority from the without degree of in provides some case witness, U.S.D.Ct., Ferrell, D.C.Misc. sight—In re writing falsely made 3. That the for Ferrell was convicted No. 28-68. apparently capable effecting a fraud. forged he uttering gery because the criminal of The elements of then ut safety release and responsibility here, as uttering, applicable are fense of Department of it with the tered follows: United By order of the Motor Vehicles. writing question was in 1. That the District of for the States District Court made; part falsely some he July was “sus dated Columbia writing 2. filed the That defendant pended practice as a member from representing it Superior Court with the determi pending the final bar of this court genuine; to be true and proceedings on his any appellate nation knowing sig- he so 3. That No. 283-67.” When behalf Criminal *8 falsely nature of his client thereon was affirmed, order no further convictions were made; entered, through apparently inadvert specif- with 1975, 4. That the defendant acted petitioned In Ferrell ence. November and without authori- ic intent defraud By order seeking court reinstatement. this witness; complaining ty and from he of this court dated November Thus, suspen writing period of falsely made was was reinstated. 5. That the months, a years and four effecting sion was seven capable of a fraud. period in year lapse excess year-and-a-day suspension; any- five ed for a lawyer eligible before disbarred iswho thing slap less be a would mere on the may apply reinstatement for it. theOn wrist. hand, agree other we with the Board that impression, Because this is a case of first mitigating there are circumstances. Nei- impose the sanction we here will be Respondent ther prior disciplinary has a standard for future cases. I think the Counsel, Both cooperated record. Bar especially court must be firm in letting appeared contrite, and returned to Mrs. bar know that conduct such as that which fee paid. Considering she had attorneys two in engaged these will not be severity conduct, mitigating any tolerated under circumstances. Were circumstances, being mindful of the respondents’ not unblemished § provisions 7(3) of D.C.Bar R. XI which records, probably I would suspend vote to accept directs that we the Board’s recom- longer period. them for an even mendation as to sanction unless such would dispositions foster inconsistent for compa- BELSON, concurring Judge, Associate in rable conduct or otherwise would be un- part dissenting part: in warranted, we any conclude that sanction a suspension year day join less than I in majority opinion, except for a clearly inadequate would respect be agree thus un- to sanction. I with the ma- Therefore, warranted. Respondents shall jority respon- that the sanction for the two suspended each be from practice of law attorneys equal. dent should my be In year for one a day. This order however, opinion, suspen- the sanction of suspension shall days be effective 30 from year day sion for a in is too severe the date of opinion. Bar D.C. R. XI light respondents’ previously un- § 19(3). blemished records. So ordered. This court is the final arbiter Bar disciplinary sanctions. Our rules reflect TERRY, Judge, concurring: Associate our great weight decision to accord join I fully in opinion. the court’s I write sanction recommendations of the Board on dispel these few words to a shadow cast Responsibility.1 Professional a case like the dissent. novel, this where the sanction it is instructive to take note also the recom- dissenting colleague suggests Our that participants mendations of the other in the in deciding what impose, sanction to we process. proceeding, In this should take into account whether inter- that Committee recommended respondents’ ests of client prejudiced. were respondents merely reprimanded. both In my judgment really that an issue. position The Bar Counsel took the respondents evidence shows that en- publicly should be censured. The four- gaged patently dishonest conduct which minority of the member Board also recom- was calculated to deceive the court and public mended that both receive grossly prejudicial to the admin- Board, Turning to censure. its five- justice. istration of Such conduct under- re- member recommended that public mines profes- confidence spondent Reback be for a integrity sion in the our judicial system. It is I based recommendation for that reason that believe —but is, holding part reject, on a fairly come on we must down hard these (or guilty respondents any lawyers two that Reback was violation other conduct). 7-101(A)(l), engage who in similar intentional failure to seek Whether objectives. prejudiced respon- the client’s interests were client’s lawful As to Parsons, I consequence. little or no Thus have vot- dent the Board recommended a XI, 7(3). 1. D.C. Rule *9 respect length suspension only Compared any to the of
suspension days. of then, recommendations, Moreover, imposed of all con- with the be here. Ferrell’s express opinion viction, itself, an upon those called of furnished a sufficient ba- now, a majority’s imposition of suspension Thus, until the sis disbarment.3 suspension a on both of the States District Court was not United respondents is severe. are, required, give weight as we to the in respondent’s professional record deter- majority I the that we are agree with mining proper the sanction. impression. dealing with a matter of first in precedents None of our the area of bar by case to majority links this Ferrell in discipline deals with an instance which if concluding, jury a precipitously, attorney signed pleading falsely an has respondents forgery of should convict This which was then filed with the court. undoubtedly uttering, sus- this court would by any precedent case be a which simi- will § tain D.C.Code 22-1401 their convictions. meas- lar in the future will be violations (1981). acknowledges the ex- majority That circumstance counsels that ured. controversy over justiciable istence simply severity, upon not proceed specific respondents had the intent whether weighing a careful of both the nature only I note that there is not to defraud. at- and the misconduct records specific their respect fact issue with have torneys involved. We stated intent, of whether but also the issue prior has attorney fact an had no complaint, identical to of a second “highly relevant and actions is by authorized original an sanc- material” to the determination client, capable prejudic- found could be 1357, 1361 Cope, tions. interests. the client’s (D.C.1983). should not It follows that we is prejudice Relevant to degree of se- respondents treat the with a fact and Parsons could have that Reback verity is not due them considera- the same result in their client’s obtained previously unblemished tion of dis- by filing a to vacate the case motion records, making purpose of simply for the complaint for divorce and to missal of the “example” thereby of them and deter- an complaint. granted, If reinstate by respon- ring conduct the future like preju- scarcely said to have motion could be dents or others. I interest. note this diced their client’s noting that the case before us After question. The issues to raise arrives impression, of first not responsibility raised here have criminal principally reference to sanction parties, could fully by the nor briefed U.S.D.Ct., Ferrell, D.C.Misc. case Inof re They can- been on this record. have 28-68, respondent No. in which It not settled here. not and should suspended practice by from indefinitely did, re- enough say, as the being after States District Court United possibly criminal. spondents’ actions were uttering in that forgery convicted dissenting re- guid- emphasize I that in precedent affords little court.2 That sanction, mini- spect not mean to suspension was I do Ferrell’s ance here. Since mis- respondents’ duration, helpful with mize the seriousness not of indefinite or, majority sur- decision as the result of a the United States District Court 2. The records of mises, order Ferrell was was inadvertent. disclose that July suspension was made 1968. The dated pending appeal con- of his criminal effective (1967). even This was so 3. D.C.Code 11-2103 subsequent United order of the viction. No force, though unlike the then in statute status. Neither District Court altered his States statute, (1981), present make not § 11-2503 District Court the United States the records of mandatory upon conviction an disbarment proceeding nor records of his reinstatement turpitude. involving moral offense M-16-75, court, the fact reveal whether subsequently disbarred was that Ferrell was
245 courts, public, conduct.4 The and the professional performance, respective- ished profession right ly, by attorneys Reback, expect honesty have the to and experience together of Respondents’ proceeding of Bar. members of the con- suspension surely a 6-month would respect duct with to the deter divorce any them from similar misconduct in the It was intolerable. calls for a substantial profession future. Other members of our sanction. unhappy proceed- would realize from this To determine what that should sanction ing falsely signing a and document impression, be this matter of first we offense, filing it with the court is a serious discipline. must purposes look to the of Bar if lawyers long and that with such and We purposes have identified those as avoid- professional suspend- unsullied are careers ing public “erosion of confidence in the conduct, ed for 6 months such for offend- profession,” “protection public of the from ing lawyers previously who had been disci- generally incompetent or unethical law- plined correspond- would face a sanction of yers, by example.” and deterrence In re ingly greater severity. impact of that Kleindienst, 146, (D.C.1975). 147 345 A.2d discipline would goal protect- serve the of similarly have the purpose described of ing public. Interested members of being discipline as protect public, “to public consequences who looked at the of profession.” courts and the In re discipline expected recog- could be to 768, 422 Haupt, (D.C.1980); A.2d In re nize adequacy of the sanction. Smith, 296, (D.C.1979). Respondents of only are members a discipline meted out must also reflect the Respondent two-lawyer firm. Parsons is misconduct, mitigat- nature of the any apparently a of of member the District ing aggravating or Haupt, circumstances. A only. suspension Columbia 6of supra 771. require arrange months would him for to It protection seems clear that the go other counsel to forward with his exist- interests have identified does not re- ing undoubtedly cases would a cause quire permanent of respondents removal disruption practice. substantial of his That Thus, practice. from temporary their sus- enough accomplish sanction is severe to pension will be the purpose deterring for purposes discipline. avowed The majori- such future by respondents misconduct or ty suspension year sanction of for a others, public and to assure the that it can devastating. will must re- be It be be confident profession doing suspension length membered that a necessary prevent what is misbehavior requires reapply permission for in question. the sort I submit that a (5). practice. Disciplinary 21(1), Rule XI suspension of 6 months will serve those It does not terminate of when its itself goals. Therefore, period run. has resultant Let us examine first the effect of such suspension longer will term be far than discipline upon respondents. They have day. suspension A of that already been humiliated error and length expected Mr. can to obliterate have contrite cooperative practice. Parsons’ The same considera- throughout process. respondent Com- apply tions the case of Re- back, years years mitigated only by after 15 unblem- the fact that he 1978) (attorney reprimanded neglecting 4. Respondents’ serious misconduct has do for signing, notarizing file notice of claim which resulted in dismissal itself, Rosenthal, neglect, suit); complaint. subsequent A first instance of In re Bar Docket 21, (BPR normally 1978) reprimand July (attorney repri- warrants cen- No. 118-77 Mailloux, failing sure. file ac- In re 66-79 manded for Bar Docket No. landlord/tenant (BPR 1981) Mizel, client); (attorney neglect June of client’s tion on behalf of (D.C. re No. 18-75 lawsuit, 17, 1975) resulting prose- (attorney in dismissal want of December censured for cution, Roundtree, reprimand); neglect warranted resulted in dismissal of a suit (BPR September prosecution). Bar Docket No. 31-76 want of *11 impose Maryland records should lead us to the least apparently is a member of the pur- serve onerous sanction will those also, expected delay and some could be poses. majority’s sanction is Because reciprocal discipline. necessary, I respect- more than far severe imposed by discipline Whether the fully dissent. suspen- suspension or a court is a 6-month day, this will have sion of a case our entire respondents
alerted not public
Bar and the of the seriousness involved here. Either sanction
misconduct recognized purposes all of the
would serve Respondents’ prior good discipline.
of Bar