In re Nathaniel H.Speights ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-BG-1017
IN RE NATHANIEL H. SPEIGHTS, RESPONDENT.
A Member of the Bar of the District of Columbia Court of Appeals
(Bar Registration No. 952036)
On Report and Recommendation
Of the Board on Professional Responsibility
(BDN-48-10)
(Board Docket No. 12-BG-017)
(Argued September 14, 2017 Decided November 22, 2017)
David A. Carr for respondent.
Hamilton P. Fox, III, Assistant Disciplinary Counsel, with whom Wallace E.
Shipp, Jr., Disciplinary Counsel at the time the brief was filed, and Jennifer P.
Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of
Disciplinary Counsel.
Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.
PER CURIAM: Respondent Nathaniel H. Speights takes exception to the
appended report and recommendation of the Board on Professional Responsibility.
The Board adopts the findings and conclusions of its Ad Hoc Hearing Committee
that respondent mishandled and neglected a personal injury action he filed in the
United States District Court in the Middle District of Pennsylvania on behalf of a
2
client who sustained severe injuries in a downhill skiing race accident. Agreeing
with the Hearing Committee‟s determination that respondent‟s errors and
omissions clearly and convincingly demonstrate his violation of D.C. Rules of
Professional Conduct 1.1 (a) (failure to provide competent representation), 1.1 (b)
(failure to serve a client with skill and care commensurate with that generally
afforded by other lawyers in similar matters), 1.3 (a) (failure to represent his client
zealously and diligently), and 1.3 (c) (failure to act with reasonable promptness in
representing his client), the Board recommends that respondent be suspended from
the practice of law in the District of Columbia for six months.
In considering respondent‟s objections to the report before us, we review de
novo the Board‟s legal conclusions and other legal questions,1 but we defer to the
factual findings of the Hearing Committee and the Board “unless they are
unsupported by substantial evidence” in the record, and we “shall adopt” the
Board‟s recommended disposition “unless to do so would foster a tendency toward
inconsistent dispositions for comparable conduct or would otherwise be
1
In re Vohra, 68 A.3d 766, 769 (D.C. 2013); In re Martin, 67 A.3d 1032,
1039 (D.C. 2013).
3
unwarranted.”2 For the reasons that follow, we conclude that respondent‟s
exceptions lack merit and impose the sanction that the Board recommends.
First, although respondent contends that his rule violations were not
established by the requisite clear and convincing evidence,3 Disciplinary Counsel
in fact presented overwhelming proof of respondent‟s neglectful and incompetent
representation of his personal injury client throughout the course of his multi-year
engagement. Respondent‟s errors and omissions, as found by the Hearing
Committee and detailed in its report appended to this opinion, included (but were
not limited to) suing the wrong defendants; failing to amend the complaint to name
the proper defendants after they became known to him; failing to conduct
discovery or to investigate the accident; failing to prepare his client for his
deposition; failing to take steps to preserve evidence; failing to request an
extension of time to produce an essential expert‟s report; and repeatedly violating
local court rules, required pretrial procedures, and court orders. As the Committee
report also notes, the federal courts contemporaneously castigated respondent for
2
D.C. Bar R. XI, § 9 (h)(1); see also In re Pierson, 690 A.2d 941, 946-48
(D.C. 1997).
3
See, e.g., In re Mitchell, 727 A.2d 308, 313 (D.C. 1999) (“It is
[Disciplinary] Counsel‟s burden to establish by clear and convincing evidence that
respondent violated the Rules of Professional Conduct.”).
4
neglecting the case and violating court orders and rules. Respondent‟s conduct
exposed his client as well as himself to the threat of sanctions and ultimately led
the district court to enter judgment for the defendants. Moreover, the Hearing
Committee found respondent‟s explanations for his actions unworthy of credence.
We are satisfied that the Committee readily could find that Disciplinary Counsel
established respondent‟s Rule violations by clear and convincing evidence.4
Respondent‟s second objection focuses on the Board‟s statement in its report
that it “concurs with the Hearing Committee‟s factual findings as supported by
substantial evidence in the record.” He argues that the Board, like the Hearing
Committee, was required to find his Rule violations to have been proved by clear
and convincing evidence. This is not correct, however. “Clear and convincing
evidence” is the standard of proof for the finder of fact to employ in a disciplinary
proceeding; but as Board Rule 13.7 states, “[w]hen reviewing the findings of a
Hearing Committee, the Board shall employ [the] „substantial evidence on the
record as a whole‟ test.” Rule 13.7 requires the Board to employ the “clear and
4
Respondent also objects to the Board‟s failure to determine whether “any
one” of the failings identified by the Committee would have sufficed “by itself” to
prove a Rule violation. The Board did not need to make such a determination,
however, because it concluded, as did the Hearing Committee, that respondent
committed the charged Rule violations based on “the entire course” of his conduct.
Respondent does not persuade us of any material defect in that conclusion.
5
convincing evidence” standard itself only when the Board makes findings of its
own – which it did not do in this case.5
Lastly, respondent claims the Board disregarded its procedures and violated
Board Rule 7.16 (a) by failing to consider motions he filed to dismiss the charges
and to strike expert witness testimony. The record does not support this claim.
Rule 7.16 (a) required the Board to “rule on” respondent‟s motions “in its
disposition in the case” after receiving the Hearing Committee‟s “proposed
disposition” of the motions “and the reasons therefor.” D.C. Bar Rule XI, § 9 (c)
allowed the Board to “adopt” the Hearing Committee‟s recommendation as its
disposition. In its report to this court, that is how the Board complied with Rule
7.16 (a) – after acknowledging that respondent‟s motions were before it, the Board
ruled on (and denied) them by expressly adopting (“incorporat[ing] by reference”)
the Hearing Committee‟s entire report and recommendation.
Furthermore, respondent fails to persuade us that either motion had merit. In
his motion to dismiss the disciplinary charges against him, respondent argued that
5
See, e.g., In re Martin, 67 A.3d at 1039 (stating that the Board “has the
power to make its own factual findings” but “must accept the hearing committee‟s
factual findings if they are supported by substantial evidence on the record as a
whole”) (quoting In re Micheel, 610 A.2d 231, 234 (D.C. 1992)).
6
he could not be held liable to his client in a malpractice action for mishandling his
personal injury lawsuit because his client had no cause of action on which he could
have prevailed in that suit6 and therefore had “los[t] nothing” as the result of
respondent‟s negligence.7 The patent flaw in this argument is that a disciplinary
proceeding is not a malpractice action. In a malpractice action, a plaintiff must
prove his damages in order to recover them. But the goals of a disciplinary
proceeding are different. We have recognized that “[w]hen viewed from the
perspective of the disciplinary system‟s responsibility to protect the public from
unworthy attorneys, to maintain the integrity of the profession, and to deter shoddy
practice, it is clear that whether the client happens to be prejudiced or not should
not determine the outcome of disciplinary cases involving neglect.”8 Although
6
Respondent cited Pennsylvania law applying the doctrine of assumption of
the risk to the sport of downhill skiing. See Hughes v. Seven Springs Farm, Inc.,
762 A.2d 339 (Pa. 2000).
7
In support of this argument, respondent relied on the decision of this
court‟s predecessor in Niosi v. Aiello, 69 A.2d 57, 60 (D.C. 1949) (“Unless a party
has a good cause of action against the party proposed to be sued, the first party
loses nothing by the conduct of his attorney even though the latter were guilty of
gross negligence.”).
8
In re Banks, 461 A.2d 1038, 1041 (D.C. 1983).
7
prejudice to the client is an element of some disciplinary violations,9 it is not an
element of the violations of D.C. Rules of Professional Conduct 1.1 and 1.3 (a)
and (c) with which respondent was charged.10 Thus, the putative lack of injury to
his client from respondent‟s mishandling of his lawsuit did not operate to “absolve
respondent of his professional obligations”11 or immunize him from disciplinary
sanction for his neglect of them.
Respondent‟s motion to strike expert testimony also was faulty. In the
proceedings before the Hearing Committee, each side presented expert opinion
testimony directed to whether respondent‟s representation met the standard of care
expected of lawyers in personal injury cases. Disciplinary Counsel‟s expert was
Peter Grenier. In a post-hearing motion, respondent moved to strike Mr. Grenier‟s
report and testimony on two grounds: first, that his testimony was unsworn, and
9
See, e.g., D.C. Rule of Professional Conduct 1.3 (b)(2) (“A lawyer shall
not intentionally . . . [p]rejudice or damage a client during the course of the
professional relationship.”).
10
See In re Banks, 461 A.2d at 1041 (“[P]rejudice to the client is not an
element of a charge of neglect, although the existence vel non of prejudice to the
client may be relevant on the issue of sanction.”); see also In re Shelnutt, 719 A.2d
96, 97 (D.C. 1998) (“Professional disciplinary violations arise from malfeasance,
not the actual harm imposed upon a client.”).
11
Shelnutt, 719 A.2d at 97 (footnote omitted).
8
second, that it was inadmissible under the rules of evidence because it “was merely
his own personal opinion as to what should have been done and was not based
upon an established standard of care.”
For the following reasons, neither of these grounds has merit. First, the
hearing transcript states that Mr. Grenier testified “after having been first duly
sworn by the Chairman” of the Hearing Committee. Respondent has proffered
nothing to contradict this, nor did he object contemporaneously that Mr. Grenier
was not under oath. Second, respondent waived or forfeited his substantive
objections to Mr. Grenier‟s opinion testimony by (1) not objecting to the inclusion
of Mr. Grenier‟s report in Disciplinary Counsel‟s hearing exhibits, (2) agreeing at
the outset of the hearing that Mr. Grenier was qualified to give opinions on the
standard of care for lawyers in personal injury cases, and then (3) neither objecting
to Mr. Grenier‟s expert opinion testimony on the grounds advanced in his motion
to strike nor cross-examining Mr. Grenier on the basis for his opinions.
Third, in point of fact, as Mr. Grenier repeatedly made clear, he was not
merely offering personal opinions but rather was applying his knowledge of the
standard of care (e.g., “my answers are limited, if you will, to my experience and
knowledge on the standards of care for a personal injury case”) gained from his
9
extensive experience practicing and teaching in the field of personal injury law in
the District of Columbia and throughout the country (which was described in detail
in his report). Fourth, even if that had not been so, Mr. Grenier‟s testimony was
admissible in this proceeding under the Rules of the Board regardless of the rules
of evidence applicable in other proceedings. Board Rule 11.3 says “[e]vidence that
is relevant, not privileged, and not merely cumulative shall be received” (emphasis
added) and leaves it to the Hearing Committee to determine what “weight and
significance” to give it. The Rule further provides that “[t]he Hearing Committee
may be guided by, but shall not be bound by[,] the provisions or rules of court
practice, procedure, pleading, or evidence, except as outlined in these rules or the
Rules Governing the Bar.” (Emphasis added.) It was within the ambit of the
Hearing Committee‟s discretion to find Mr. Grenier‟s testimony relevant to its
evaluation of respondent‟s performance and hence admissible under Rule 11.3.
For all these reasons, we conclude that the Board and Hearing Committee did not
err in denying respondent‟s motion to strike Mr. Grenier‟s testimony.
Having addressed respondent‟s exceptions to the Board‟s report, we turn to
the question of an appropriate sanction for respondent‟s professional misconduct.
“The imposition of sanction in bar discipline cases is not an exact science and may
10
depend on the facts and circumstances of each particular proceeding.”12 D.C. Bar
Rule XI, § 9 (h) “endorses the Board‟s exercise of a broad discretion” in selecting
the sanction to be imposed,13 and we owe respect for the Board‟s considered
judgment in the matter. Its recommendation therefore comes to us with “a strong
presumption in favor of its imposition.”14 “Generally speaking, if the Board‟s
recommended sanction falls within a wide range of acceptable outcomes, it will be
adopted and imposed.”15 We are “especially deferential” to the Board‟s
recommendation where, as here, neither the respondent nor Disciplinary Counsel
takes issue with its appropriateness.16
Agreeing with the Hearing Committee, the Board recommends that
respondent be suspended from the practice of law for six months. This is twice the
length of the suspension that Disciplinary Counsel originally sought. The Board
and Hearing Committee consider a six-month suspension to be at the top of the
range of sanctions that have been imposed in comparable cases involving neglect
12
In re Austin, 858 A.2d 969, 975 (D.C. 2004).
13
In re Haupt, 422 A.2d 768, 771 (D.C. 1980).
14
In re Hallmark, 831 A.2d 366, 371 (D.C. 2003).
15
Id. (quoting In re Goffe, 641 A.2d 458, 463-64 (D.C. 1994)).
16
In re Grimes, 687 A.2d 198, 198 (D.C. 1996).
11
and incompetence. They view it as justified by the presence in this case of
significant aggravating factors – notably, the egregiousness and protracted nature
of respondent‟s misconduct, his failure to acknowledge it and accept responsibility,
and what the Committee found to be the evasiveness and dishonesty of his
testimony.
On the facts before us, we agree that a stern sanction is necessary – “not to
punish the attorney but to protect the public and the courts, to maintain the
integrity of the profession, and to deter other attorneys from engaging in similar
misconduct.”17 For the reasons persuasively set forth in the report before us, we
defer to and accept the Board‟s recommendation of a six-month suspension.18
17
In re Pierson, 690 A.2d 941, 948 (D.C. 1997).
18
Our respectful deference to the Board‟s carefully considered
recommendation should not be understood as reflecting a view on our part that an
even greater sanction would have been unwarranted. Arguably, for example, it
would have been reasonable in the circumstances of this case to include a
requirement that respondent furnish proof of rehabilitation as a condition of his
reinstatement to practice. See D.C. Bar R. XI, § 3 (a)(2); In re Cater, 887 A.2d 1,
24 (D.C. 2005) (holding that a fitness requirement is justified where the evidence
clearly and convincingly raises a “serious doubt,” i.e., “real skepticism,” as to the
suspended attorney‟s continuing fitness to practice law). We have not been asked
to impose such a condition, however, and we will not do so sua sponte in this case.
We note in this regard that, at oral argument, respondent‟s counsel asked us to take
into consideration the fact that respondent has retired from the practice of law.
Disciplinary Counsel has not disputed that representation.
12
Accordingly, respondent Nathaniel H. Speights is hereby suspended from
the practice of law in the District of Columbia for a period of six months, effective
thirty days from the date of this opinion. Within ten days thereafter, respondent
must file an affidavit in compliance with D.C. Bar Rule XI, § 14 (g). For purposes
of reinstatement, respondent‟s suspension will be deemed to run from the date he
files that affidavit.
So ordered.
APPENDIX
Report and Recommendation of the Board on Professional Responsibility, In re:
Nathaniel H. Speights, Board Docket No. 12-BD-017