IN RE SEAN P. MCMULLEN

• Court: District of Columbia Court of Appeals
• Decided: December 8, 2016
• Docket: 15-BG-985
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-BG-985 12/8/16

IN RE SEAN P. MCMULLEN, RESPONDENT.

A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 980333)

On Report and Recommendation of the Board on Professional Responsibility (BDN-D200-15)

(Submitted March 8, 2016 Decided December 8, 2016)

Timothy J. Battle for respondent.

Wallace E. Shipp, Jr., Disciplinary Counsel, and William R. Ross, Assistant Disciplinary Counsel, for the Office of Disciplinary Counsel.

Before FISHER, EASTERLY, and MCLEESE, Associate Judges.

PER CURIAM: The Virginia State Bar Disciplinary Board (“Virginia Board”)

revoked respondent Sean McMullen’s license to practice law in the

Commonwealth of Virginia in July 2015 due to violations of the Virginia Rules of

Professional Conduct, to which Mr. McMullen stipulated. After receipt of the

Virginia Board’s decision, this court suspended Mr. McMullen’s license pursuant

to D.C. Bar Rule XI, § 11 (d), and, because D.C. Bar Rule XI, § 11 (c) establishes 2

a default rule that this court should impose the same discipline as the original

disciplining jurisdiction, see In re Chaganti, 144 A.3d 20, 23 n.3 (D.C. 2016),

ordered him to show cause why reciprocal discipline should not be imposed. The

burden is thus on Mr. McMullen to show by clear and convincing evidence that

one of the five exceptions to the default rule applies. These exceptions, set forth in

§ 11 (c),1 are narrowly interpreted. See In re Chaganti, 144 A.3d at 23. As we

have previously made clear, “reciprocal discipline proceedings are not a forum to

reargue the foreign discipline.” In re Zdravkovich, 831 A.2d 964, 969 (D.C. 2003).

1 An attorney may escape reciprocal discipline only if he can show by clear and convincing evidence that: (1) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion on that subject; or (3) The imposition of the same discipline by the Court would result in grave injustice; or

(4) The misconduct established warrants substantially different discipline in the District of Columbia; or

(5) The misconduct elsewhere does not constitute misconduct in the District of Columbia.

D.C. Bar R. XI, § 11 (c); see also In re Chaganti, 144 A.3d at 23. 3

Mr. McMullen argues that “[sub]sections 1, 2 and 3 all support [his] request

for relief,” but fails thereafter to tie his arguments to any particular exception listed

under Rule XI, § 11 (c). We discern in Mr. McMullen’s submission to this court

only two arguments against the imposition of reciprocal discipline. First, Mr.

McMullen argues that he was denied an opportunity in the Virginia proceedings to

present “all relevant evidence in [his] defense,” seemingly invoking the deprivation

of due process exception under § 11 (c)(1). Mr. McMullen further argues that,

instead of imposing identical discipline, this court should impose a “suspended

suspension,” perhaps invoking the “grave injustice” exception under § 11 (c)(3).2

We conclude that Mr. McMullen has failed on both grounds to carry his burden to

show that reciprocal discipline should not be imposed,3 and thus we order his

disbarment.

2 Section 11 (c)(4) might be a better fit for this argument, but Mr. McMullen disclaims reliance on that exception. 3 As noted above, Mr. McMullen asserts that reciprocal discipline is also inappropriate under § 11 (c)(2), but this assertion is entirely undeveloped in his brief. See Gabramadhin v. United States, 137 A.3d 178, 187 (D.C. 2016) (“[I]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.”). In any event, we note that Mr. McMullen stipulated to all of the facts necessary to support the Virginia Board’s findings. 4

I. Procedural Background

In January 2015, the managing partner of Mr. McMullen’s former law firm,

Lange, Thomas & McMullen, LLP, filed a complaint with the Virginia State Bar

alleging that Mr. McMullen had neglected two clients’ lawsuits, resulting in

dismissals with prejudice, and that he had lied to the clients and the law firm about

the matters for a prolonged period of time, depriving both clients of the ability to

appeal. Virginia Bar Counsel (“Bar Counsel”) interviewed Mr. McMullen about

the complaint in March 2015, and he signed medical release forms so Bar Counsel

could obtain his records. But Bar Counsel did not request any of Mr. McMullen’s

medical records from his doctors. In the meantime, the Virginia Board issued a

Pre-Hearing Order directing Mr. McMullen to comply with the Rules of the

Supreme Court of Virginia with respect to “impairment evidence.”4

As of June 12, 2015, the date of a prehearing conference call, Mr. McMullen

had not provided notice, pursuant to the Pre-Hearing Order, of his intent to present

4 The Virginia rules direct any “Respondent who intends to rely upon evidence of an Impairment in mitigation of Misconduct” to “provide notice not less than 14 days prior to the hearing to Bar Counsel and the . . . Board of his or her intention to do so.” Va. Sup. Ct. R. Pt. 6, § 4, ¶ 13-12 (F); see also Va. Sup. Ct. R. Pt. 6, § 4, ¶ 13-23 (A). 5

impairment evidence at his June 26, 2015 hearing. Thus, Bar Counsel indicated

during the call that it would object to presentation of any such evidence at Mr.

McMullen’s disciplinary hearing. Nevertheless, Mr. McMullen attempted to

introduce at the hearing evidence that he suffered from depression. The Virginia

Board sustained an objection from Bar Counsel and excluded this evidence. Mr.

McMullen stipulated to Bar Counsel’s factual assertions regarding his misconduct,

admitting facts sufficient to show he had violated Virginia Professional Conduct

Rules regarding competence, diligence, communication, terminating client

representation, and dishonesty. See Va. R. Prof’l Conduct 1.1, 1.3 (a)–(c), 1.4 (a)–

(c), 1.16 (a)(1)–(3), & 8.4 (a)–(c). The Virginia Board, after considering

aggravating and mitigating circumstances,5 revoked his license.

We now consider whether Mr. McMullen has demonstrated that we should

not impose the same discipline.

5 The Virginia Board considered the following aggravating factors: a prior public reprimand from the Virginia State Bar; “Respondent’s dishonest or selfish motives”; his pattern of misconduct involving multiple clients; “Respondent’s refusal to acknowledge the wrongful nature of his conduct”; the vulnerability of the clients; and “Respondent’s substantial experience in the practice of law.” In mitigation, the Board considered Mr. McMullen’s cooperation with the investigation. 6

II. Due Process Analysis

We review due process claims in reciprocal discipline cases not as an

appellate court for “foreign disciplinary proceedings,” but only to see if “any

serious defects were present in the foreign proceedings . . . such that it would be

wrong to impose reciprocal discipline here.” In re Chaganti, 144 A.3d at 24

(alteration in original). Mr. McMullen never actually asserts that he was denied

due process in the Virginia proceedings such that reciprocal discipline should not

be imposed pursuant to § 11 (c)(1), but, by recounting the procedural history of his

Virginia disciplinary proceedings, he suggests that, because Bar Counsel had

actual notice that he suffered from depression, the Virginia Board unfairly

precluded him from presenting this mitigating evidence.

Specifically, Mr. McMullen argues that he “reasonably expected” that Bar

Counsel would investigate whether he had an impairment defense because he was

interviewed by Bar Counsel’s investigator and gave him two signed medical

releases. But, after the investigation, the Virginia Board issued an order directing

Mr. McMullen to comply with the timetable in the Virginia Supreme Court’s rules

for providing notice of an intent to present impairment evidence. 7

On the record presented to us, we have no reason to believe it was a due

process violation for the Virginia Board to enforce its rules. Even if Mr.

McMullen initially made a “good faith procedural error,” he was alerted to his

mistake at the prehearing conference. At that point he could have made the actual

notice argument he seems to raise before this court and sought permission to

present his impairment evidence.6 But Mr. McMullen has not provided this court

with any evidence that, at or subsequent to his disciplinary hearing, he challenged

the exclusion of his impairment evidence. Accordingly, Mr. McMullen has failed

to carry his burden to show that the Virginia Board’s decision to deny presentation

of impairment evidence amounted to a due process violation, as opposed to the

lawful consequence of his own forfeiture. Cf. In re Richardson, 692 A.2d 427, 434

(D.C. 1997) (“[A]s a consequence of Richardson’s Florida waiver, we are entitled

to rely—for purposes of final, reciprocal discipline—on the disciplinary result in

Florida, properly certified to this court, without affording Richardson the

evidentiary hearing [he waived]. Put succinctly: if Richardson validly waived an

evidentiary hearing in Florida, he is deemed to have waived any evidentiary

6 See Va. Sup. Ct. R. Pt. 6, § 4, ¶ 13-12 (F) (excusing noncompliance upon a showing of “good cause”). 8

hearing on the same charges that would otherwise be required by due process

before he could be suspended from the practice of law in this jurisdiction.”).7

III. Alternative Sanction

Mr. McMullen also argues that a more appropriate sanction from this court

would be a “suspended suspension.” In support of this argument, Mr. McMullen

references In re Vohra, a bar discipline case in which this court accepted the D.C.

Board on Professional Responsibility’s proposed suspended sentence after finding

that the respondent “suffer[ed] from a major depression at the time” of his

misconduct but “ha[d] improved with treatment.” 762 A.2d 544, 544 (D.C. 2000).

Though evidence that an attorney suffered from “diagnosable, chronic

depression” that was causally related to his misconduct can mitigate a sanction, In

re Peek, 565 A.2d 627, 633 (D.C. 1989), the attorney has the burden to prove his

7 Mr. McMullen also asserts that he was “unable to secure the attendance of his medical professionals to present live testimony” because the hearing was held in Richmond, Virginia, not Washington, D.C. We do not address this argument in light of Mr. McMullen’s failure to provide timely notice of his intent to present this evidence. 9

disability by clear and convincing evidence.8 See In re Silva, 29 A.3d 924, 934

(D.C. 2011); In re Edwards, 870 A.2d 90, 95 (D.C. 2005). Due to his forfeiture,

Mr. McMullen has not made the threshold showing that he suffered from a

disability. Cf. In re Edwards, 870 A.2d at 96 (declining to consider mitigation

evidence where attorney failed to present evidence first to a hearing committee).

In the absence of any record evidence that he suffered from depression and that

this disability compromised his ability to practice law, we decline to consider

whether Mr. McMullen should receive a lesser sanction in this jurisdiction.9

IV. Conclusion

Mr. McMullen has failed to prove, by clear and convincing evidence, any of

the exceptions to reciprocal discipline in D.C. Bar Rule XI, § 11 (c). We therefore

8 Having carried this burden, the attorney must then also “prove by a preponderance of the evidence that the [disability] substantially caused him to engage in that misconduct[ and] prove by clear and convincing evidence that he now is substantially rehabilitated.” In re Stanback, 681 A.2d 1109, 1115 (D.C. 1996). 9 Mr. McMullen’s reliance on In re Pearson, 628 A.2d 94 (D.C. 1993), to support his argument that this court should impose a different or lesser penalty is misplaced. In that case we determined that the attorney had carried his burden to show a due process violation under § 11 (c), id. at 99; as discussed above, however, Mr. McMullen has failed to carry his burden to prove his due process rights were violated in Virginia. 10

order that he be disbarred from the practice of law in the District of Columbia. For

purposes of applying for reinstatement after five years of disbarment, see D.C. Bar

R. XI, § 16 (a), Mr. McMullen’s period of disbarment will commence once he

complies with D.C. Bar Rule XI, § 14 (g).

So ordered.