In re Washington

541 A.2d 1276, 1988 D.C. App. LEXIS 63

• Court: District of Columbia Court of Appeals
• Decided: May 4, 1988
• Docket: No. 85-902
• Status: Published

Opinions

PER CURIAM;

Before us is a recommendation of the Board on Professional Responsibility that respondent be suspended for three years. We think this sanction insufficient. The record shows a persistent pattern of violation of the most basic requirements of the attorney-client relationship. No responsibility of our attorney disciplinary system is more fundamental than protecting the public against such actions. Although disbarment could well be an appropriate sanction for such numerous derelictions, we impose on the facts of this case a four-year suspension.¹

As the attached Board Report and Recommendation spells out in detail, respondent was found to have neglected five legal matters entrusted to him, involving a total of some fourteen clients. Indeed, for all practical purposes, he did almost nothing to further the interests of the clients, although in three of the five cases he had received payments from the clients either in fees or as advance litigation expenses.² He often failed to communicate with his clients or to respond to inquiries, and in two cases made affirmative misrepresentations. At times, he did not return documents to clients who severed their relationship with him.

1 (1st Cir.), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 727 (1986); United States v. Espinosa, 771 F.2d 1382 (10th Cir.1985); United States v. Spaar, 748 F.2d 1249 (8th Cir.1984). These cases are distinguishable on their facts. Moreover, to the extent they are instructive in this case, they tend to support appellant’s position.

None of the facts found by the Board is contested by respondent, who filed no brief either with the Board or with us. Indeed, respondent’s whole attitude toward the disciplinary process seems to be, as the Board Report puts it, “one of disdain.” The attempts to avoid service of process, after winning a prior appeal on this precise issue, see In re Washington, 513 A.2d 245 (D.C. 1986), the indifferent conduct at the hearings, and the apparent lack of any contribution or regret are all matters of serious concern, counting against him in the weighing of appropriate sanction. Furthermore, while the Board suggests that respondent’s prior discipline — a ninety-day suspension for two instances of neglect and other Code breaches, In re Washington, 489 A.2d 452 (D.C.1985) — should not be taken into account as an unlearned lesson, we note that the Hearing Committee proceedings in that case began in late 1983 and the Board’s Report to us was issued in October of 1984. Thus, by at least the time of the neglect in the case involving the faculty members of the University of the District of Columbia, he certainly was on notice of the adverse judgment by his peers on his conduct of the practice of law. In any event, the facts underlying the prior discipline tend to confirm the ongoing nature of respondent’s misconduct.

On the other hand, we must take into account the fact that the Board has not found that any actual lasting harm resulted as a consequence of respondent’s actions.³ The occurrence of actual harm is by no means a prerequisite for disciplinary action, certainly not where the potential for harm is plainly present as here. But, the absence of actual harm has some marginal relevance which we will take into account in this instance. See In re Rehack, 513 A.2d 226, 232 n. 5 (D.C.1986) (en banc); cf. In re Hutchinson, 534 A.2d 919, 925-26 (D.C.1987) (en banc). Furthermore, we cannot be unmindful of respondent’s long history of unblemished practice prior to the commencement of these acts of misconduct and of his past pro bono work in the community and sustained contributions to the Bar, see In re Washington, supra, 489 A.2d 461, 463, albeit these must be a wasting asset that cannot repeatedly be taken into consideration. These considerations have persuaded us, but barely, that discipline just short of disbarment is appropriate.⁴

Accordingly, it is ORDERED that Respondent Melvin J. Washington is suspended from the practice of law for four years, effective 30 days from the date of this decision and order. It is

FURTHER ORDERED that Respondent Melvin J. Washington make restitution as set forth in the annexed Board Report and Recommendation.

So Ordered.

1 . Although we have in the past imposed a five-year suspension, In re Willcher, 404 A.2d 185 (D.C.1979), such an action is the equivalent of disbarment. Under our rules, a disbarred attorney (other than one convicted of a crime involving moral turpitude, see In re Kerr, 424 A.2d 94 (D.C.1980)), may apply for reinstatement after five years. D.C.Bar Rule XI, § 21(2). An attorney suspended for more than a year must also affirmatively apply for reinstatement. Id. at § 21(1).

2 . In one case, he was found to have charged an excessive fee.

3 . Although it does not affirmatively appear in the record that Ms. Jackson’s belated estate claim was ever satisfactorily dealt with, the hearing committee report on that complaint contains no reference to any actual harm.

4 . As the Board Report indicates, precedent is scant. We think the case before us falls between In re Haupt, 422 A.2d 768 (D.C.1980) (three-year suspension), and In re Willcher, supra note 1 (five-year suspension). Although numbers alone cannot be determinative, the persistence of Respondent’s derelictions put him beyond Haupt However,' they fall short of those of Willcher, and in addition, Willcher had improperly handled client funds.