Matter of Sablowsky

529 A.2d 289, 1987 D.C. App. LEXIS 396
CourtDistrict of Columbia Court of Appeals
DecidedJuly 29, 1987
Docket85-1649
StatusPublished
Cited by2 cases

This text of 529 A.2d 289 (Matter of Sablowsky) 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 Sablowsky, 529 A.2d 289, 1987 D.C. App. LEXIS 396 (D.C. 1987).

Opinions

FERREN, Associate Judge:

In this disciplinary proceeding, Richard Sablowsky is charged with violating Disciplinary Rule 1-102 (A) (5) by engaging in conduct “prejudicial to the administration of justice.” The Board on Professional Responsibility agreed with the Hearing Committee that Sablowsky had used improper means — withholding a witness’ name — to induce plaintiff’s counsel in a medical malpractice action to retain Sablowsky as an expert medical-legal consultant. Rejecting the Hearing Committee’s suggested sanctions of a public reprimand, the Board has recommended a six month suspension from the practice of law (with one member dissenting in favor of a reprimand or censure). Because we unanimously agree that Sa-blowsky violated DR 1-102(A)(5) and that the Board’s proposed sanction is correct, we order that Sablowsky be suspended for six months from the practice of law in the District of Columbia.

I.

The allegations of misconduct are attributable to negotiations between Sablowsky and two other attorneys, John P. Hills and Bruce L. Marcus, who were pursuing a medical malpractice action for a client named O’Laughlin.

[290]*290A.

In October 1982, Sablowsky met with Eileen O’Hara, a Certified Registered Nurse Anesthetist (CRNA), to discuss the possibility of her serving as an expert witness in another case. During this discussion, O’Hara mentioned the O’Laughlin litigation; she had been present in the operating room during O’Laughlin’s surgery. According to Sablowsky, O’Hara told him she was receiving pressure from hospital administrators and defense counsel to adopt the hospital’s version of the facts — a version with which she strongly disagreed. He added that O’Hara had wanted to contact plaintiff’s counsel but that she had been concerned about jeopardizing her employment at the hospital. Sablowsky suggested she write to her supervisor, setting out her version of the facts, in order to create a record that would protect her against an unjustified discharge. Sablow-sky further testified that O’Hara had asked him to contact plaintiff's counsel for her but not to reveal her name until after she had sent the letter to her employer.

Sablowsky soon telephoned Hills. He said that he was a medical malpractice consultant, that he had some information about the O’Laughlin case, and that he would like to talk about the services he could offer. Hills agreed to meet with Sablowsky and asked to include his cocoun-sel, Marcus.

On October 25, 1982, Sablowsky met with the two attorneys and described O’Hara’s situation without giving her name, sex, or exact professional position. He described the witness as a “health care professional” in “anaesthesiology support.” He said the witness’ account of the O’Laughlin operation would provide a stronger theory of liability than the approaches counsel were considering at that time, but he did not elaborate on the alternative theory or on the facts underlying it. Sablowsky also mentioned that another eyewitness could give the same account, but he did not give the name or position of this witness. In addition, Sablowsky described his credentials as a medical-legal consultant and suggested that his services would be useful to them. Hills rejected Sablowsky’s initial proposal that he receive a percentage of the recovery for his services. Sablowsky then proposed a fee of $25,-000, contingent on successful resolution of the case. The meeting ended inconclusively. Hill and Marcus left the meeting with the belief that Sablowsky was trying to sell them the witness’ name in exchange for a consulting job or, at least, for money disguised as a consulting fee.

B.

Shortly after this first meeting, Hills contacted former Bar Counsel about his concern that Sablowsky’s actions might comprise an unethical effort to sell evidence. In a letter to Bar Counsel, Hills outlined his recollection of the October 25 meeting and stated that he would prefer to confront Sablowsky with the fact that he had consulted Bar Counsel. Bar Counsel, however, favored Hills’ proposed alternative approach: continuing the “negotiations” to see what Sablowsky would do. In a meeting with Hills on October 27, 1982, Bar Counsel “deputized” Hills and Marcus as “affiliate[s] of [his] office” to investigate Sablowsky and to keep Bar Counsel apprised of further developments. According to the Board’s report to this court, Bar Counsel thus “encouraged Mr. Hills to continue negotiations with Respondent and to explore fully the ethical implications of his conduct.” On November 3,1982, Hills telephoned Sablowsky and voiced his concern that their negotiations might create the “appearance of buying evidence.” Sablow-sky replied that Hills would be buying consulting services, not evidence. Further meetings followed. Hills testified that “[everything from the November 3 conversation on was pursuant to Bar authority, and were negotiations I would not have entered into but for the fact of Bar authority.”

II.

In ruling that Sablowsky violated DR 1-102(A)(5), the Board purported not to rely on Hills’ and Marcus’ respective accounts of contract negotiations that oc[291]*291curred after the first part of the November 3 telephone conversation. The Board was properly concerned, as was the Hearing Committee, that Bar Counsel’s “deputizing” of Hills and Marcus violated this court’s rules and thus tainted their later encounters with Sablowsky.1 Unfortunately, however, the Board’s Report and Recommendation reveals that the Board did rely on significant events that occurred during a meeting on November 5,1982, and in a later telephone call.2

A majority of the division agrees with the Board that Bar Counsel violated D.C. Bar R. XI § 4(3)(b), supra note 1, by encouraging the two attorneys on October 27 to continue to negotiate with Sablowsky in order to determine whether the situation would unfold into a more clear-cut violation. In my view, the actions of Bar Counsel, through Hills and Marcus, amounted to an improper effort to lure Sablowsky into more obvious unethical behavior. Bar Counsel has a responsibility to educate the bar with the hope of preventing violations, if possible, not of encouraging them. Bar Counsel, therefore, should have alerted Sa-blowsky to his concerns, based on Sablow-sky’s correspondence and meeting with Hills. Bar counsel thus would have afforded Sablowsky an opportunity to pursue his relationship with Hills ethically or not at all.3

III.

Because the Board relied in part on evidence created after Bar Counsel had deputized Hills and Marcus, and because we generally treat recommendations of the Board like actions of administrative agencies for purposes of our review, this court ordinarily would remand the case for reconsideration. In re Dwyer, 399 A.2d 1, 12 (D.C.1979) (citing Securities & Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943)); In re Thorup, 432 A.2d 1221, 1226 (D.C.1981). In this case, however, the Board’s consideration of events after the October 25 meeting was not prejudicial. On review of agency adjudications, “reversal and remand is required only if substantial doubt exists [as to] whether the agency would have made the same ultimate finding [without the questionable evidence].”

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Related

In Re Hopkins
677 A.2d 55 (District of Columbia Court of Appeals, 1996)
Matter of Sablowsky
529 A.2d 289 (District of Columbia Court of Appeals, 1987)

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529 A.2d 289, 1987 D.C. App. LEXIS 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-sablowsky-dc-1987.