Legal Ethics-Newly Minted Leniency for Negotiated Discipline

November 11, 2021
compass with needle pointing the word ethics. Conceptual 3d illustration of business integrity and moral

By Andrea L. Moseley

Institutionalized leniency, in any form, is music to my ears. When it comes to sanctions, hard line rules and policies rarely benefit my clients. Whether I am representing individuals accused of professional ethics violations or defending companies and individuals facing Federal investigations; I want the possibility of official discretion to employ leniency to exist. I need to know that the ultimate judges and decision makers have the flexibility to consider my client’s particular facts and circumstances before taking action.

As of last week, I was thrilled to hear that the D.C. Court of Appeals decided to bake the possibility of leniency into a previously inflexible area of legal ethics. On November 4, 2021, the D.C. Court of Appeals said bar officials have the authority to negotiate reduced punishment for violations that previously required disbarment.

The attorney in this case admitted that he recklessly misappropriated entrusted funds in two matters, entered into an impermissible fee splitting arrangement and failed to keep proper records. The attorney and Disciplinary Counsel agreed to a sanction of a three-year suspension. Previously, the D.C. Court of Appeals held that intentional misappropriation and reckless appropriation require disbarment in the absence of extraordinary circumstances. See In re Addams, 579 A.2d 190 (D.C. 1990) (en banc).

negotiated discipline must be deemed “justified and not unduly lenient.” see Board prof. resp. r. 17.5

In this closely watched case, the D.C. Court of Appeals considered whether the negotiated-discipline process, as opposed to the contested-disciplinary process, permitted imposition of a sanction that is less stringent than the decision in Addams.

note: court opinions in negotiated-discipline cases generally may not be cited as precendent in contested-discipline cases.

The Court held as a matter of law that the negotiated-discipline process does permit a more flexible approach to the appropriate sanction in cases of reckless misappropriation.

There were three “structural” features that persuaded the Court that the negotiated-discipline process necessarily contemplated additional flexibility in determining the appropriate sanction in reckless misappropriate matters.

1. Negotiated-discipline must be “justified.”

In other words, this test as set forth in D.C. Bar R. XI, Section 12.1(c)(3), implies the notion of flexibility.

2. Negotiated-discipline recommendations are reviewed with considerable deference.

See In re Viehe, 762 A.2d 542, 543 (D.C. 2000) (per curiam).

3. Negotiated-discipline recommendations are generally not precedents for contested-discipline cases.

While leniency did win the day, the Court admonished that the ruling in this particular case was narrow. The Court expressly withheld any view as to whether the negotiated-discipline process could permit a sanction of less than disbarment in a case involving intentional misappropriation in the absence of exceptional circumstances.

The Court spent considerable time on this last point. While I was pleased to see that there is room to negotiate for less than disbarment in reckless misappropriation cases, I am mindful that may be as far as this leniency goes. Nonetheless, we can celebrate the fact that this form of institutional discretion is now expressly available. As a result, scarce bar resources can be conserved, mitigating circumstances are acknowledged and overly harsh sanctions can be avoided in this area of legal ethics.

Published by Kropf Moseley

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