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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-BD-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.
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