Matter of Rosen

470 A.2d 292, 1983 D.C. App. LEXIS 528
CourtDistrict of Columbia Court of Appeals
DecidedDecember 6, 1983
DocketM-121-82
StatusPublished
Cited by14 cases

This text of 470 A.2d 292 (Matter of Rosen) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Rosen, 470 A.2d 292, 1983 D.C. App. LEXIS 528 (D.C. 1983).

Opinions

FERREN, Associate Judge:

Respondent practices criminal defense law, usually representing indigent criminal defendants in Superior Court. He is before this court as a result of complaints filed by two indigent defendants primarily alleging neglect and intentional failure to seek lawful client objectives. The complaints arose out of two unrelated incidents and were considered by separate Hearing Committees, then consolidated by the Board on Professional Responsibility in its Report and Recommendation to this court. Adopting both Hearing Committees’ findings of fact, the Board concluded that respondent had violated DR 4 — 101(B)(1),1 DR 6-101(A)(3),2 and DR 7-101(A)(l)3 of the Code of Professional Responsibility. The Board considered respondent’s prior disciplinary history and the seriousness of the violations involved here, and recommended that we suspend respondent from the practice of law for three months.

Respondent objects to the Board’s findings and conclusions on grounds of insufficiency of the evidence and due process. He further contends that the recommended sanction is disproportionate to any wrong on his part, and urges that, in the event we adopt the Board’s conclusions as to Code violations, we impose a period of supervised probation in lieu of suspension.

We conclude that the Board’s findings and conclusions are supported by substantial record evidence, but we cannot accept its proposed sanction of three months’ suspension. We order instead a six months’ suspension.

I. Foggie/Rosen

A. Statement of Facts

The first complaint against respondent rests on substantially undisputed facts. In the pre-dawn hours of September 13, 1980, the police arrested Eugene Foggie for the attempted larceny of a camper top. He was taken to Superior Court, where a representative of the Pre-Trial Services Agency interviewed him. The Agency reported that Foggie had no fixed address and no full-time employment, that he was addicted to heroin, and that he had three prior convictions. The report also indicated that Foggie had lived in the District of Columbia all of his life, that he had family in the area, and that he earned money by doing odd jobs. The Agency, however, was unable to verify any of this information. According to the report, moreover, a representative of the Agency contacted the defendant’s stepfather, who said that he would not allow Foggie to live with him.

Foggie testified that respondent spoke with him in the cell block shortly after his interview with the Pre-Trial Services Agency. Respondent asked him no questions about his background: “He [respondent] just said that we were going before the judge and then ... I think that was it.” The entire interview lasted three to four minutes.

Respondent gave a different account of his contacts with his client on the morning of the arraignment:

After being advised of the appointment by the Criminal Justice Act Office ... I went down and spoke to Mr. Foggie and advised him fully of the nature of the case ... I spoke to him about his back[294]*294ground such as criminal record, residence, jobs, things of that nature.
I advised him fully of his legal rights, what would happen that day. The fact that the case was a misdemeanor, would be continued for the purpose of the status and this going to trial and that we would make efforts to try to have him released on bail, depending on the recommendation of the pretrial services.
My recollection is that the bail agency’s report came out later that morning about twelve o’clock. I went back to the cell block ... and I showed it to Mr. Foggie, and advised him that because of the lack of verification, any information he had, the bail agency did not recommend personal bond, and almost every case they do recommend some sort of conditions of release.

At the arraignment, the following exchange took place:

THE COURT: Mr. Rosen, what do you have to say given the Bail Agency information?
MR. ROSEN: Your Honor, I read the report, other than the fact that I’d ask the court to set a reasonable bond since none of the information can be verified.
THE COURT: All right. At this time there will be a $500 cash or surety bond.

Unable to make the bond, Foggie was incarcerated. Foggie testified, without contradiction from respondent, that he telephoned respondent from jail to request that respondent file a bond review motion, and that respondent agreed to do so. He further testified, still without contradiction, that “[w]hen I first talked to him, he told me he would [file a bond review motion] then after a few days had passed and I hadn’t heard from him, I made another call and he hung up on me.” Respondent admits that he never filed the motion.

Respondent next met with his client on October 10, 1980, the day of the status hearing. According to the findings of the Hearing Committee as adopted by the Board, at this meeting “[respondent’s] contact with his client centered on his attempts to have his client enter a plea of guilty -on that day.”

At the status hearing, respondent proffered to the court that his client wished to plead guilty. The court asked Foggie whether it was his intention to plead guilty, and Foggie replied: “Well, Your Honor, the situation is where I was, it was a misunderstanding, you know, about what was — that I could have the property. And then when I went to remove it .... ” The court interrupted the proceedings and suggested that respondent confer with his client. According to respondent’s testimony at the hearing, he then advised Foggie as follows:

I told him that what he said, that permission from the third party that he didn’t know, other than he said someone told him he could take it, would not be a valid defense in the eyes ... in other words, would not be a valid defense, would not be a successful one.

The hearing resumed. The trial court explained the elements of attempted petit larceny and asked Foggie if he admitted to each element.4 The court refused to accept [295]*295the plea when Foggie again asserted he believed he had permission to take the camper top.

On October 27,1980 respondent moved to withdraw from the case. The trial court granted the motion and appointed new counsel to represent Foggie. The Hearing Committee found that on November 10, 1980, Foggie’s new counsel filed a bond review motion, and that on November 13 the trial court released Foggie on personal recognizance in the third-party custody of Stepping Stones pending trial.5

B. The Board’s Findings

The Hearing Committee found, and the Board agreed, that respondent’s performance fell short in that he failed to seek his client’s pre-trial release, failed to communicate with his client, failed to conduct meaningful discovery of his client’s case, and failed adequately to prepare his client for the plea discussion. In reviewing disciplinary proceedings, this court “shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record.” D.C.Bar.R. XI § 7(3).

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Bluebook (online)
470 A.2d 292, 1983 D.C. App. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-rosen-dc-1983.