DISTRICT OF COLUMBIA COURT OF APPEALS BOARD OF PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD OF PROFESSIONAL RESPONSIBILITY In the Matter of: : : DONALD W. WHITEHEAD, : : Respondent. : Bar Docket Nos , : & A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes to the Board on Professional Responsibility (the Board ) on review of the Report and Recommendation of Hearing Committee Number Ten (the Committee ) concluding that a number of ethical rules violations charged by Bar Counsel, which are in the nature of neglect in connection with the representation of four separate clients, were proved by clear and convincing evidence. 1 The Committee also found that Respondent established his claim of Kersey-type mitigation of sanction based upon the disability of alcoholism. 2 In determining the sanction, the Committee considered the record as a whole, including the absence of aggravating evidence such as dishonesty, prejudice to clients, and prior disciplinary history and noted that Respondent 1 The Specification of Charges includes four counts, each relating to a different client: Count I (Mr. Kevin Guishard); Count II (Mr. Raymond Taylor); Count III (Ms. Laverne Middleton); and Count IV (Mr. Lamont Sparrow). 2 In re Kersey, 520 A.2d 321 (D.C. 1987), is the seminal case on mitigation of sanction by reason of disability. Following the Committee s preliminary non-binding determination that at least one violation was established, and pursuant to Board Rule 11.12(a), Respondent presented to the Committee his Motion to Present Evidence on Mitigation of Sanction Based upon a Disability or Addiction (which had been previously filed with the Board pursuant to Board Rule 7.6(a)). Transcript of Hearing held on April 28, 2004 ( Tr. I ), at 100 (Record Index No. 9).

2 cooperated fully at that stage of the proceeding. The Committee recommended a 60-day suspension, stayed during a two-year period of probation with conditions. After reviewing the full record, including the supplemental evidence in support of Respondent s rehabilitation, the Board adopts the Committee s findings and conclusions with regard to the violations charged and concurs with the Committee s sanction recommendation, including the finding that Respondent established Kersey-type mitigation. I. PROCEDURAL HISTORY A. Proceedings Before the Hearing Committee Respondent was the sole witness to testify in Bar Counsel s case-in-chief (i.e., the violation phase). Tr. I at The parties filed a Stipulation of Facts. Joint Exhibit 1 ( JX ), (Record Index No. 10) (referred to in Tr. I at 13-14). Bar Counsel s Exhibits ( BX ) A-D and 1-12 were admitted into evidence. Tr. I at 65. Respondent s exhibits ( RX ) 1-25 were also admitted into evidence. Tr. I at 66. At the conclusion of the violation phase of the case, the Committee made a nonbinding determination that Bar Counsel proved at least one Rule violation, and Respondent notified the Committee of his Kersey motion based on the disability of alcoholism. Tr. I at On the following day, April 29, 2004, the Committee heard the sanction phase of the case. Transcript of hearing held on April 29, 2004 ( Tr. II ), (Record Index No. 11). Respondent called three witnesses in support of his claim of Kersey mitigation: Dr. Thomas C. Goldman, M.D., who was accepted as an expert in general psychiatry and forensic psychiatry (Tr. II at 4-61); Richard Vincent, director and sobriety counselor with the Maryland State Bar Association ( MSBA ) Lawyers 2

3 Assistance Program (Tr. II at ); and Respondent himself. Tr. II at The parties Joint Exhibit ( JX ) 2 (Record Index No. 13) 3 and Bar Counsel s Exhibit 13 4 were also admitted into evidence. Tr. II at 4, 185. B. Interim Board Order Pursuant to Board Rule 7.6(c) Concurrent with the proceedings below, the Board, pursuant to Board Rule 7.6(c), issued an interim order on June 7, 2004, imposing a number of conditions of practice upon Respondent. 5 (Record Index No. 20). Taking notice that Respondent was then under administrative suspension from the practice of law in the District of Columbia for failure to pay bar dues, and that reinstatement is easily attained through payment of dues, the Board concluded that limited conditions of practice should be put in place to protect the public should Respondent seek to reactivate his Bar membership during this disciplinary proceeding. Id. at 3. The limited conditions included that Respondent (1) identify a sobriety monitor within 20 days of the Order and submit the designated sobriety monitor s quarterly report, including a record of Respondent s self-reported attendance at weekly Alcoholics Anonymous ( AA ) meetings, to both the Board and Bar Counsel; (2) submit proof of completion of the 26-week counseling program at the Epoch Center, a program in which Respondent was then enrolled; and (3) provide 3 JX 2 is the curriculum vitae of Dr. Thomas C. Goldman, M.D. 4 BX 13 represents the materials that Mr. Vincent turned over to Bar Counsel pursuant to subpoena. Tr. II at 184. These materials include self-reported information regarding Respondent s sobriety (e.g., Weekly Inventories during the period July 2003 through January 2004 and other contact information concerning Respondent). 5 Board Rule 7.6(c) authorizes the Board to order interim measures to protect the public, the courts and the profession during the pendency of a disciplinary proceeding when Kersey-type mitigation is interposed in the sanction phase of a proceeding. The Board s order was issued after the hearing had concluded, but before the Committee had issued its report. 3

4 immediate written notification to the Board and Bar Counsel in the event Respondent intends to apply to reactivate his status in the D.C. Bar by paying dues. Id. at 4. With respect to this last condition, the Order continues, [u]pon receiving such notice [intent to reactivate], the Board can arrange for the immediate appointment of a practice monitor, if the circumstances at that time so warrant. Id. at 3-4. C. The Committee s Report and Recommendation The Committee issued its Report and Recommendation on July 30, 2004 ( HC Rpt. ). (Record Index No. 24). The Committee s proposed findings track the undisputed facts stated in the parties post-hearing briefs. As to the violations charged, the Committee determined that Bar Counsel established the following violations in all four representations: Rule 1.1(b) (failure to serve a client with skill and care) (id. at 17); Rule 1.3(a) (failure to act diligently and zealously represent client) (id. at 19); Rule 1.3(c) (failure to act with reasonable promptness in representing a client) (id. at 23); Rule 1.16(d) (in the context of termination of his representations, failure to take timely steps to protect client interests, such as surrendering property to which the clients were entitled to their respective court-appointed successor counsel) (id. at 24-26); and Rule 8.4(d) (engaging in conduct that seriously interferes with the administration of justice) (id. at 28). In addition, the Committee found a violation in the Guishard and Taylor representations of Rule 1.4(a) (failure to keep client reasonably informed about the status of a matter and promptly complying with reasonable requests for information). Id. at 26. The Committee determined that the charges under Rules 1.1(a) (failure to provide 4

5 competent representation) and 1.3(b)(1) and (2) (intentional failure to seek lawful objective of client or cause prejudice to client) were not established. Id. at 17, 22. With respect to the sanction, the Committee made the following findings: (1) Respondent s misconduct was serious; (2) it did not prejudice his clients; (3) it did not involve dishonesty and Respondent s testimony was credible; and (4) Respondent has no prior history of discipline. Id. at 34. The Committee concurred with Bar Counsel that a 60-day suspension is appropriate on these facts. Id. However, the Committee found that Respondent met his burden on the Kersey-type claim of mitigation, based largely on the testimony of the expert witness, Dr. Goldman, and the evidence regarding Respondent s conduct since the start of his recovery. Id. at Particularly with respect to the issue of substantial rehabilitation, the Committee was persuaded by Dr. Goldman s opinion, the doctor s observations that Respondent is serious about recovery and has a good mechanism in the form of family to assist him in achieving recovery, and Respondent s determination demonstrated by his participation in Fr. Martin Ashley s aftercare program (Epoch Center program) following his in-patient sobriety program. Tr. II at 34, 52-53, 76, 78; HC Rpt. at 33. Taking Kersey mitigation into consideration, the Committee recommended that the 60-day suspension be stayed and Respondent be placed on two years probation, with the following conditions: A. Maintain sobriety; B. Attend AA meetings as required by Richard Vincent of the Maryland Lawyers Assistance Program or the District of Columbia Lawyer Counseling Program; C. Work with a practice monitor for one year provided by the Lawyers Practice Assistance Program of the District of Columbia Bar or the equivalent Maryland Bar Association entity; 5

6 D. Continue in psychological therapy until the therapist certifies that therapy is no longer necessary; E. Work with a sobriety monitor for one year, provided by either the Maryland Lawyers Counseling Program or the District of Columbia Lawyer Counseling Program; and F. Agree to the submission of quarterly reports to the Board and Bar Counsel from the practice and sobriety monitors and his therapist. Id. at 35. The Committee also recommended resumption of the full suspension if Respondent fails to comply with the conditions of his probation. Id. D. Bar Counsel s Exception to the Committee s Report Bar Counsel takes exception only to the Committee s recommendation concerning Kersey mitigation. In particular, while Bar Counsel agrees with the Committee that Respondent satisfied the first two Kersey requirements (i.e., a disability of alcoholism was established during the period of misconduct, and the disability was a substantial cause of the misconduct, Bar Counsel contends that Respondent did not satisfy the third part of the Kersey test (i.e., proof of substantial rehabilitation ) and urges that a 60-day suspension be imposed. Brief of Bar Counsel at 13. (Record Index No. 29). Bar Counsel, however, added the following: Id. at If, however, Respondent submits further evidence of continuing rehabilitation, pursuant to Rule 11.12(e) [footnote omitted], Bar Counsel would then recommend that the suspension be stayed, and that he be placed on probation for two years with conditions specified by the Hearing Committee. If there is no post-hearing evidence or insufficient evidence of rehabilitation is submitted by Respondent, Bar Counsel recommends that the 60-day suspension be served. 6

7 E. Oral Argument Before the Board At oral argument on December 17, 2004, it was conceded that Respondent had thus far complied with the Board s June 7, 2004 interim order. The first quarterly sobriety report of Respondent s sobriety monitor, MSBA Lawyers Assistance Program, had been submitted on November 14, 2004, and a statement verifying his completion of the 26-week counseling program at the Epoch Center had been submitted on November 1, Further, Respondent s counsel stated that Respondent would continue to comply with the Board s June 7, 2004, interim order until final disposition of this matter. 6 F. Board s Second Interim Order On June 24, 2005, while this matter was still pending before the Board, the Board took notice that no quarterly sobriety report had been submitted by the MSBA Lawyer Assistance Program on behalf of Respondent following its November 14, 2004 report. Because the issue of rehabilitation under the third-prong of the Kersey test was contested, and in light of Respondent s undisputed, continuing obligation to comply with the conditions of practice imposed by the Board s June 7, 2004 interim order, the Board issued a further order on June 24, 2005, (Record Index No. 35), directing Respondent to submit to the Board and Bar Counsel, within ten (10) days of the Order, a report prepared by the MSBA Lawyers Assistance Program, on Respondent s sobriety for the period October 1, 2004 to June 15, 2005; and further ordered Respondent to submit to the Board and Bar Counsel future quarterly reports on his sobriety prepared by Mr. Vincent 6 Respondent also referenced this continuing obligation in his post-hearing brief. Record Index No. 22 at 19. 7

8 for each calendar quarter ending after June 30, Id. Respondent also was invited to submit within ten (10) days of this Order an explanation of any circumstances that he believes excuse or justify his failure to submit quarterly reports on his sobriety since November Id. G. Respondent s Supplemental Evidence In response to the Board s second interim order, Respondent provided the Board and Bar Counsel with copies of the second and third quarterly reports prepared by the MSBA Lawyers Assistance Program regarding Respondent, dated February 16, 2004 [sic], and June 27, 2005, respectively. The reports had not reached either the Board or Bar Counsel because the program inadvertently had mailed the reports to the wrong address. Each report reflected that Respondent had remained sober. Letter from Waldhauser to Branda, dated June 27, 2005 (Record Index No. 36). The second and third reports also state that Respondent is in compliance with all of the sobriety requirements embodied in an Agreement of Understanding signed by Respondent and MSBA Lawyer Assistance Program representatives on April 7, 2005, pursuant to conditional diversion in the Maryland Bar arising out of the same occurrence as underlies the instant disciplinary proceeding. 7 In her third quarterly sobriety report to the Board, Ms. Waldhauser indicates that prior quarterly reports were inadvertently sent to the wrong address. 7 A copy of the Agreement of Understanding is attached to the copy of the second quarterly report, dated February 16, 2004 [sic]. Pursuant to the Agreement of Understanding, Respondent is obliged to meet regular, rigorous reporting and disclosure requirements, and to submit to random urinalysis testing, in order to establish his continuing sobriety. The MSBA s Lawyer Assistance Program agrees, inter alia, to monitor Respondent for a period of five years from the date of the Agreement, and to file quarterly reports with this Board, noting Respondent s adherence to or violation of the Agreement. 8

9 II. RESPONDENT S VIOLATIONS The parties stipulated to the allegations in all four counts in the Specification of Charges. JX 1. Each count alleges misconduct in one of four separate court appointments on behalf of defendants in criminal appeals during the period September 1998 through September 17, The stipulated facts, which were adopted in full in the Committee s Report, reflect that Respondent failed to communicate with these clients after September 1, 2001, failed to comply with Court orders to file briefs, failed to file motions to extend time to file briefs, and failed to comply with Court orders directing him to communicate with his clients, and upon the vacating of his appointments, to turn over client files forthwith to successor counsel appointed by the Court. The Committee s findings and conclusions on these charges, which are undisputed, are that Respondent violated Rule 1.1(b), 1.3(a), 1.3(c), 1.16(d), 1.4(a), and 8.4(d). HC Rpt. at We have reviewed the Committee s findings, and conclude that the findings are supported by substantial evidence on the record as a whole. Accordingly, the Board adopts the Committee s findings regarding the violations and incorporates them herein by reference. III. SANCTION Bar Counsel asserted (BC Proposed Findings of Fact, etc. at 29) (Record Index No. 18), and the Committee below agreed (HC Rpt. at 34-35), that the violations found, standing alone, typically would warrant a 60-day suspension, citing In re Sumner, 665 A.2d 986 (D.C. 1995) (per curiam) (30-day suspension for neglect of one client representation); In re Lewis, 689 A.2d 561 (D.C. 1997) (per curiam) (same). 9

10 In general, in determining an appropriate sanction, the Board is required to review (1) the nature of the violation; (2) the mitigating and aggravating circumstances; (3) the need to protect the public, the courts and the legal profession; and (4) the moral fitness of the attorney. In re Slattery, 767 A.2d 203, (D.C. 2001). A sanction is deemed appropriate if it is comparable to one imposed in other disciplinary cases for the same or similar misconduct or would not otherwise be unwarranted. D.C. Bar R. XI, 9(g). Sanctions for neglect-type misconduct range from public censure (where there is no prior discipline and the misconduct did not involve other substantial or intentional violations) to a short suspension (where there was neglect of multiple client matters or other violations) or even longer periods of suspension (where there was also a finding of misrepresentation). See Sumner, 665 A.2d at 990 (discussing sanction range in neglecttype cases). While this is Respondent s first encounter with the disciplinary system, and there is no evidence that he engaged in any dishonesty in connection with his client representations or that his clients were prejudiced by his misconduct, the neglect of multiple clients makes this a more serious case than one involving neglect of a single client. In these circumstances, we agree with the Committee that a 60-day suspension is appropriate in this matter. Since Respondent raised a Kersey-type claim in mitigation of sanction, however, we review the mitigation evidence to determine whether he met his burden of proof, and, if so, to what extent his sanction should be mitigated. Under Kersey and its progeny, in order to mitigate sanction based upon a disability, Respondent must establish three elements: (1) he suffers from a disability; (2) that the disability substantially caused Respondent to engage in the misconduct; and (3) 10

11 he is substantially rehabilitated. See, e.g., In re Edwards, 870 A.2d 90, 95 (D.C. 2005) (citing In re Stanback, 681 A.2d 1109, (D.C. 1996)). 8 Mitigation may be appropriate only if it will still allow for the protection of the public, and of public and private rights. In re Robinson, 736 A.2d 983, (D.C. 1999) (citing In re Appler, 669 A.2d 731, 738 (D.C. 1995)). The first and third elements must be proven by clear and convincing evidence; the second, causation, must be shown by a preponderance of the evidence. See, e.g., Edwards, 870 A.2d at 95 (citing Stanback 681 A.2d at ) (setting forth the burdens that a respondent carries as to each of the three Kersey-type elements of mitigation of sanction); Board Rule 11.12(a) (same). The Committee found, and Bar Counsel concedes, that Respondent established the first two elements: the disability of alcoholism and causation. The Committee also determined that Respondent demonstrated substantial rehabilitation. Bar Counsel takes exception to the latter determination. See BC Br. in Support of Exception (Record Index No. 29). For the reasons discussed below, the Board concurs with the Committee that Respondent has met his burden under Kersey. The Board accepts the Committee s conclusions that the findings establish disability and causation. With regard to the rehabilitation prong of the analysis, the Board expands the Committee s findings based upon supplemental evidence submitted by Respondent since the Committee s decision in this case. The record as a whole, including the supplemental evidence, establishes that Respondent has remained sober for 8 Board Rule 14.1, Definitions and Scope of Disability Proceedings, defines significant evidence of rehabilitation as clear and convincing evidence that it is significantly more probable than not that there will be no re-occurrence in the foreseeable future of respondent s prior disability or addiction. Bd. Rule 14.1(a)(v). 11

12 19 months and has otherwise substantially complied with the Board s June 7, 2005 interim order. This evidence, along with the expert testimony of Dr. Goldman and Mr. Vincent, fully supports the Committee s determination that Respondent is substantially rehabilitated. A. Respondent s Alcoholism During the Period of Misconduct The evidence shows that Respondent s misconduct began during the representation in the Sparrow case in mid-january 2001 (JX 1 at 27-28), the earliest time when he failed either to file a brief pursuant to court order or to seek an extension of time, and continued until at least April 19, 2003, when Respondent turned over the client files in the Middleton and Sparrow cases to successor counsel. Id. at 24, 31. Dr. Goldman, who was qualified as an expert in psychiatry and forensic psychiatry, was a witness for both Respondent and Bar Counsel on the mitigation question. Tr. II at 9. Prior to the hearing, Dr. Goldman was engaged by Bar Counsel to evaluate Respondent to determine whether he was under a medical disability. Tr. II at 6. Dr. Goldman interviewed Respondent in March and April 2004, over a total of four hours, interviewed Respondent s wife by telephone, interviewed Respondent s then current therapist, Susan Tangiers, read the medical records and the records from Fr. Martin Ashley s in-house treatment program for alcoholism in the fall of 2003, and reviewed Bar Counsel s Specification of Charges and the underlying client complaints. Tr. II at In Dr. Goldman s opinion, Respondent had two related illnesses, alcoholism dating back to his teens, and depression, which had been brought on by his alcoholism in mid-2001 when his drinking worsened to the point where he was drunk or hung over all the time. Id. at 11-13, 45. By mid-2001, Dr. Goldman opined, 12

13 Respondent s judgment was significantly impaired, and he was no longer able to make rational, professional decisions in his cases, and his marriage and personal life declined. Id. at This condition persisted until Respondent went to Fr. Martin Ashley s program in October Id. at This timeline was corroborated by Respondent s own testimony. Respondent remembered little with regard to particular professional lapses during this period, but he did remember that at some point he stopped picking up his mail; and when it was forwarded to his house, he hid it because he couldn t deal with it. Tr. II at 75. Accordingly, the Board concurs with the Committee s determination (HC Rpt. at 32) that Respondent was under the disability of alcoholism during the period of his misconduct, and therefore he established the first prong of Kersey. B. Substantial Cause of Respondent s Misconduct The Committee determined that alcoholism was a substantial cause of Respondent s misconduct, relying principally upon Dr. Goldman s testimony. HC Rpt. at 32. We agree. In Dr. Goldman s opinion, there was a substantial relationship between the diseases of alcoholism and depression and the misconduct alleged in the Specification of Charges. Tr. II at 24. In his view, as Respondent s drinking got worse in mid-2001, his depression grew; he withdrew from life, not just his professional life (id. at 12); he ignored his practice and his bills; he had low energy and lacked motivation; he wanted to stay in bed (id. at 13); he was drunk and hung over all of the time, becoming a recluse, afraid to go to the office where he feared receiving bad news from the court and clients, and generally unable to face responsibility. Id. Additionally, Dr. Goldman opined, 13

14 Respondent developed a maladaptive way of handling work: he feared his clients in the cases where he was appointed to handle criminal appeals, and wished to be rescued from the situation. Id. at 14. C. Respondent s Substantial Rehabilitation A claimant must submit clear and convincing evidence of rehabilitation or recovery sufficient to warrant mitigation of sanction, usually the same type of evidence required by D.C. Bar R. XI, 13(g) to show that an attorney under suspension for incapacity is no longer incapacitated and is fit to resume the practice of law. Board Rule 11.12(d). The Evidence. The Committee after hearing the testimony of Respondent, Mr. Vincent, and Dr. Goldman, concluded that Respondent was substantially rehabilitated. The testimony established that Respondent had been sober for the five months before the hearing, had successfully completed a 28-day intensive in-patient rehabilitation program supervised by Fr. Martin Ashley in Havre de Grace, Maryland, and a 26-week follow-on out-patient recovery program at EPOCH center. During this time, he committed himself to Alcoholics Anonymous and since then he attended far more AA meetings than required by his recovery program. Respondent explained the 12- step AA program and how he had climbed those steps to control his drinking. His testimony provided a very moving description of a conversation he had with his father just days before his father died of a heart attack when Respondent was beginning Fr. Martin Ashley s 28-day regimen and the impact that conversation and his father s sudden death had upon him. Tr. II at He testified that his sobriety date was October 24, 14

15 2003 the last day he drank. Tr. II at 95. He explained that sobriety is very important to [him] and [he] has to do everything [he] can to maintain that sobriety. Tr. II at 101. Mr. Vincent is certified by the State of Maryland as a professional counselor and therapist. Tr. II at 153. His job as Director of the MSBA Lawyer Assistance Program involves the [e]valuation of and referral and monitoring of... substance abuse [cases]. Tr. II at 153. The courts have accepted [him] as an expert in that field... [and] they also accept [his] recommendations for treatment of the substance abuse[r]. Id. He testified about his relationship with Respondent, which began in September or October of 2003, when Respondent came to see him because he had an alcohol-related situation. Tr. II at 155. He encouraged Respondent to attend the State Bar AA meeting every Thursday. Tr. II at 156. He believes that Respondent s in-patient stay with Father Martin Ashley was successful (Tr. II at 157) and, in his opinion, Respondent has begun the recovery process very successfully. Tr. II at 159. He feel[s] that Respondent is emotionally becoming sober. Tr. II at 161. According to Mr. Vincent, the person that needed to drink and get drunk, I ll say definitely, no longer exists. Tr. II at 162. As for Respondent s capability of resuming his professional career, Mr. Vincent was quite emphatic: I feel that... his emotional acceptance, his factual acceptance of the fact that the reason that all these things are happening in his life now, is because he was addicted to alcohol.... [He] realizes that the way he can guarantee that these things don t happen again, is not to take a drink today. I think that that is accepted, rather than just being done out of fear. I feel that because of that, he is emotionally able to face the rigors and stress of, as you all know, of being a lawyer. 15

16 Tr. II at 164. Dr. Goldman s testimony gave a more qualified assessment of the state of Respondent s rehabilitation, but his testimony in some respects paralleled Mr. Vincent s observations. Dr. Goldman, like Mr. Vincent, thinks [Respondent] has the good judgment to know that he was making some very bad mistakes and that he needs to... develop new habits and keep the new habits he s made. Tr. II at 25. He nonetheless saw Respondent only at the beginning of that. Id. 9 Dr. Goldman also stressed the need for Respondent to have the support of the programs in which he is participating. As Dr. Goldman put it: The way we usually think about this is that, for someone to be rehabilitated, that is functional. Yes, I think he is getting there and he may be there with some possible limitations. I mean, someone who is in recovery, who is going to meetings, who is not drinking, so that alcoholism is not a day-to-day event, he s not partaking of the substance, may be quite capable of carrying on a professional life in a competent manner and a responsible manner, carrying on his personal life, carrying on his family life. As long as he maintains himself in recovery, that person may function quite competently. Tr. II at (emphasis added). But while Respondent is relatively early in the game, Dr. Goldman testified that Respondent has shown every sign, as far as I can tell, of being serious, very serious about recovery. Tr. II at 34. And he opined that Respondent had used this program well, responsibly and so I d say his prognosis at this point is good. Tr. II at 35. But he reiterated Respondent s need to be in Alcoholics Anonymous for the rest of his life.... He needs to be working with a sponsor. He needs to have his sponsor s feedback. Id. 9 Mr. Vincent too recognized that Respondent is at a fairly early stage of recovery. Tr. II at

17 And he would recommend that he have a practice monitor, at least initially. Tr. II at 41. The Post Hearing Evidence. The evidence in the hearing supports the Committee s somewhat cautious conclusion that Respondent has established his substantial rehabilitation and thus has satisfied the three prongs of the Kersey test. As the Committee put it: HC Rpt. at 33. The Committee places particular emphasis on substantial of the substantial rehabilitation requirement. That term does not mean complete, and particularly with respect to alcoholism being a lifetime affliction, it could not reasonably be so construed. The quarterly reports filed with the Board under the June 7, 2004 interim order tend to confirm that the Committee s assessment is correct. These three reports demonstrate that Respondent has persevered in his commitment to sobriety. Each of the three reports, dated November 17, 2004, February 16, 200[5] and June 27, 2005, state that Respondent has been in compliance with [the MSBA Lawyers Assistance Program] recommendations this past quarter including but not limited to the following: Personal Meetings; Remained Abstinent from alcohol and non-prescribed drugs; Telephone Check-ins; Written Inventory Sheets stating: Formal Meeting Attended; Program Related Activities; Social Activities; Personal Development; Relationships; and Work on Character Defects. 17

18 Record Index Nos. 34 and 36. These reports are made not only under the Board s interim order but also pursuant to a Conditional Diversion Agreement that Respondent entered with Maryland Bar Counsel in April 2005, under which Respondent is to be monitored by the MSBA Lawyers Assistance Program until October 24, Attachment to Waldhauser letter to Barnes (Record Index No. 38); see Agreement of Understanding, Attachment to Record Index No. 36. In sum, three quarterly sobriety reports have been submitted in the past year, which reflect not only Respondent s continued sobriety but also his compliance with a number of other conditions imposed by the Maryland Bar pursuant to a diversion agreement with Respondent (arising from the same misconduct as that in the instant case). 10 Thus, as of the Board s decision herein, the evidence establishes that Respondent has remained sober for 19 months, without a relapse, and he continues to comply with the other requirements imposed by the sobriety monitor. By the standards suggested by both Dr. Goldman (i.e., he would be reasonably optimistic about Respondent if after two years, he s remain[ed] his recovery [sic] and has demonstrated his ability to practice with a monitor, and maybe a year without a monitor (Tr. II at 48)) and Mr. Vincent ( a person who maintains total abstinence for a period of two years achieves a 65% chance of staying sober (Tr. II at 180)), such an extended record of sobriety is a sound predictor of Respondent s continued recovery. 10 See Record Index Nos. 34 &

19 Sanction Recommended. Notwithstanding our conclusion that Respondent established Kersey-type mitigation, we remain mindful of the potential for relapse, and the disciplinary system s obligation to protect the public, the courts, and the profession from unfit attorneys. The Committee recommended a probationary sanction with conditions, consistent with the suggestions of both Dr. Goldman and Mr. Vincent, which Respondent accepts (Resp. s Br. in Support of HC Rpt. at 2-3). The Board agrees that a probationary sanction with conditions is appropriate to monitor Respondent s continued sobriety and fitness. Accordingly, we recommend that Respondent be suspended for 60 days, with the imposition of the suspension stayed in favor of a two-year period of probation during which Respondent shall be required to: (1) Remain abstinent from alcohol and non-prescribed medications; (2) Comply with the following directives contained in the conditional diversion agreement approved by the Maryland Grievance Commission on March 22, 2005 and the terms of the Agreement of Understanding entered into by the Maryland State Bar Association s Lawyer Assistance Program ( MSBA LAP ) and Respondent on April 7, 2005: (a) (b) Report weekly by telephone to the MSBA LAP monitor; Notify MSBA LAP regarding any prescribed medication and any change in medication; (c) Submit weekly written inventory sheets to the MSBA LAP monitor regarding compliance with the Agreement of Understanding and give written consent to disclose appropriate information to probationary individuals; 19

20 (d) Arrange to meet in person with the MSBA LAP monitor at a minimum of once per week; and (e) Submit to supervised, random urinalysis testing upon request of the MSBA LAP monitor and have the results processed within 24 hours of the request. (3) Continue to submit to the Board and Bar Counsel copies of the quarterly reports of adherence or violation of the Agreement of Understanding in March, June, September and December of each year as long as the probationary period lasts or until the final report in October 2008, whichever is earlier; (4) Notify the Board and Bar Counsel in writing if he should seek to reactivate his Bar membership in the District of Columbia Bar; and (5) Consult with the District of Columbia Lawyer Practice Assistance Program in the event he seeks to activate his membership in the District of Columbia Bar and implement the recommendations of that program. IV. CONCLUSION Respondent violated Rules 1.1(b), 1.3(a) & (c), 1.16(d), and 8.4(d) in each of four client representations and violated Rule 1.4(a), as well, in two of those representations. The Board recommends that, as a sanction for those violations, Respondent be suspended from the practice of law for the period of sixty (60) days, with the imposition of the 20

21 sanction suspended for two (2) years probation during which Respondent be required to comply with the five conditions listed above. BOARD ON PROFESSIONAL RESPONSIBILITY By: James P. Mercurio Dated: July 29, 2005 All members of the Board concur in this Report and Recommendation except Mr.Willoughby, who is recused, and Dr. Payne and Ms. Helfrich, who did not participate. 21