In re: Kevin J. McNeely ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-BG-1279
IN RE KEVIN J. MCNEELY, RESPONDENT.
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 473950)
On Report and Recommendation of the Board on Professional Responsibility
Ad Hoc Hearing Committee
(Board Docket No. 17-ND-011)
Approving Petition for Negotiated Discipline
(BDN 284-16)
(Decided: December 14, 2017)
Before GLICKMAN and MCLEESE, Associate Judges, and STEADMAN, Senior
Judge.
PER CURIAM: This decision is non-precedential. Please refer to D.C. Bar R.
XI, § 12.1 (d) governing the appropriate citation of this opinion.
In this disciplinary matter, the District of Columbia Court of Appeals Board
on Professional Responsibility Ad Hoc Hearing Committee (the Committee)
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recommends approval of a petition for negotiated attorney discipline. The
violations stem from respondent Kevin J. McNeely’s professional misconduct
arising from acts or omissions during the course of his representation of two joint
clients in obtaining patent protection. In brief, the clients retained respondent to
file utility, international, and design patent applications. After respondent filed the
utility and international patent applications and the clients paid respondent the
associated fees and costs, respondent deposited the funds in an operating account
that held other funds but did not pay the filing fee for either patent. After the
clients were unable to make contact with respondent, they retained new counsel
and subsequently made contact with respondent, who admitted his failures and
worked with successor counsel to restore the utility patent application.
Respondent acknowledged he (1) failed to provide competent representation
and serve his client with skill and care; (2) failed to zealously represent his clients;
(3) failed to communicate with his clients; and (4) commingled client funds,
thereby violating Rules 1.1 (a) & (b), 1.3 (a), 1.4 (a) and 1.15 (a) of the District of
Columbia Rules of Professional Conduct. In mitigation, the Committee considered
the fact that respondent knowingly and voluntarily acknowledged the facts and
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misconduct, demonstrated remorse, established entitlement to a Kersey1 mitigation
defense, and does not have a prior history of discipline. As a result, Disciplinary
Counsel and respondent negotiated the imposition of discipline in the form of a
thirty-day suspension, stayed, and three years of probation during which
respondent must (1) not commit any other violation of the D.C. Rules of
Professional Conduct or the disciplinary rules of any other jurisdiction (excluding
any reciprocal discipline imposed for these violations); (2) remain in individual
therapy with his treating psychologist; (3) attend Alcoholics Anonymous (AA) at
least two times a week and submit proof of attendance to his psychologist; (4)
continue his use of psychotropic medication as prescribed by his psychiatrist and
meet with his psychiatrist every three months; (5) execute and maintain the
appropriate waivers or consent forms to permit the psychologist and psychiatrist to
contact the D.C. Bar Lawyer Assistance Program (LAP) if he ceases treatment or
fails to attend AA; and (6) authorize LAP to report to Disciplinary Counsel if he
stops treatment with his psychologist or psychiatrist, fails to attend AA, or revokes
his consent to prevent LAP from reporting to Disciplinary Counsel. Additionally,
respondent shall advise, in writing, his employer about the conditions of his
probation and copy Disciplinary Counsel on the correspondence. If respondent’s
1
In re Kersey, 520 A.2d 321 (D.C. 1987).
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probation is revoked and he is suspended from the practice of law, he must file
with this court an affidavit pursuant to D.C. Bar R. XI, § 14 (g) in order for his
suspension to be deemed effective for purposes for reinstatement. After reviewing
the petition for negotiated discipline, considering a supporting affidavit,
conducting a limited hearing, reviewing Disciplinary Counsel’s files and records,
and holding an ex parte meeting with Disciplinary Counsel, the Committee
concluded that the petition for negotiated discipline should be approved.
In accordance with our procedures in uncontested disciplinary cases, we
agree this case is appropriate for negotiated discipline. We accept the Committee’s
recommendation because the Committee properly applied D.C. Bar R. XI, § 12.1
(c), and we find no error in the Committee’s determination. Based upon the record
before the court, the negotiated discipline of a thirty-day suspension from the
practice of law, stayed, and three years of probation with the conditions set forth
above is not unduly lenient considering existence of mitigating factors and the
discipline imposed by this court for similar actions.2 Accordingly, it is
2
In re Chapman, 962 A.2d 922 (D.C. 2008) (imposing a sixty-day
suspension, with thirty days stayed in favor of a one year of probation with
conditions, for a single neglect matter that caused significant prejudice to a client
after the attorney, with no prior disciplinary history, was deliberately dishonest
( continued…)
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ORDERED that Kevin J. McNeely is hereby suspended from the practice of
law in the District of Columbia for thirty days, stayed, and is placed on three years
of probation during which respondent must (1) not commit any other violation of
the D.C. Rules of Professional Conduct or the disciplinary rules of any other
jurisdiction (excluding any reciprocal discipline imposed for these violations); (2)
remain in individual therapy with his treating psychologist; (3) attend AA at least
two times a week and submit proof of attendance to his psychologist; (4) continue
his use of psychotropic medication as prescribed by his psychiatrist and meet with
his psychiatrist every three months; (5) execute and maintain the appropriate
waivers or consent forms to permit the psychologist and psychiatrist to contact
LAP if he ceases treatment or fails to attend AA; and (6) authorize LAP to report
(…continued)
during Disciplinary Counsel’s investigation, lacked credibility, and did not express
remorse); In re Bland, 714 A.2d 787 (D.C. 1998) (involving the public censure of
an attorney for neglect and other misconduct in a single matter); In re Lewis, 689
A.2d 561 (D.C. 1997) (recognizing it is “unusual” to impose a suspension for a
first violation that sounds largely in neglect, with no proven violations involving
dishonesty, and suspending the attorney for thirty days after he abandoned
representation of a client in a criminal matter, failed to maintain contact with the
client, failed to give notice to the client that the attorney had terminated
representation, and failed to provide accurate address to court); In re Banks, 577
A.2d 316 (D.C. 1990) (resulting in a thirty-day suspension after the attorney’s
neglect resulted in the client’s cause of action being barred by the applicable
statute of limitations).
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to Disciplinary Counsel if he stops treatment with his psychologist or psychiatrist,
fails to attend AA, or revokes his consent to prevent LAP from reporting to
Disciplinary Counsel. Additionally, respondent shall advise, in writing, his
employer about the conditions of his probation and copy Disciplinary Counsel on
the correspondence. If respondent’s probation is revoked and he is suspended from
the practice of law, he must file with this court an affidavit pursuant to D.C. Bar R.
XI, § 14 (g) in order for his suspension to be deemed effective for purposes for
reinstatement.
So ordered.