In re Paul T. Mensah ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-BG-560
IN RE PAUL T. MENSAH, RESPONDENT.
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 480889)
On Report and Recommendation
of the Board on Professional Responsibility
Approving Petition for Negotiated Discipline
(BDN 11-19)
(Argued October 6, 2021 Decided November 4, 2021)
Hamilton P. Fox, III, Disciplinary Counsel, for petitioner.
Justin M. Flint, with whom Channing L. Shor made an appearance, for
respondent.
Before MCLEESE and DEAHL, Associate Judges, and STEADMAN, Senior
Judge.
PER CURIAM: This is a negotiated-discipline case. Under D.C. Bar R. XI,
§ 12.1(d), this opinion may not be cited as precedent in contested-discipline cases
except as provided in D.C. App. R. 28(g). This opinion may, however, be cited as
precedent in negotiated-discipline cases.
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Respondent Paul T. Mensah and Disciplinary Counsel entered into an
agreement pursuant to which Mr. Mensah acknowledged that he recklessly
misappropriated entrusted funds in two matters, entered into an impermissible fee-
splitting arrangement, and failed to keep proper records. Mr. Mensah and
Disciplinary Counsel also agreed to a sanction of a three-year suspension with a
requirement that Mr. Mensah demonstrate fitness to practice law before being
reinstated. We accept the recommended discipline.
I.
A Hearing Committee recommended that this court approve the negotiated-
discipline agreement. The Hearing Committee acknowledged that in In re Addams,
579 A.2d 190 (D.C. 1990) (en banc), this court held that intentional misappropriation
and reckless misappropriation require disbarment in the absence of extraordinary
circumstances. The Hearing Committee also noted that it was undisputed that there
were no “extraordinary circumstances” in this case within the meaning of Addams.
The Hearing Committee concluded, however, that the negotiated-discipline process
permits imposition of a sanction less stringent than Addams would otherwise require,
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as long as the agreed-upon sanction is “justified, and not unduly lenient.” Board
Prof. Resp. R. 17.5(a)(iii); see also D.C. Bar R. XI, § 12.1(c) (directing Hearing
Committee in negotiated-discipline cases to determine whether “[t]he sanction
agreed upon is justified”). The Hearing Committee determined that the agreed-upon
sanction was justified and not unduly lenient. In support of that conclusion, the
Hearing Committee explained that (1) the agreed-upon sanction of a three-year
suspension with fitness requirement is the second-harshest available sanction; (2) in
practical effect, disbarment amounts to a five-year suspension with fitness
requirement; (3) there were no aggravating factors in Mr. Mensah’s case; (4) Mr.
Mensah had no prior discipline; (5) Mr. Mensah was entirely forthcoming and
cooperative; (6) no client or third party had been harmed or had complained; and (7)
Mr. Mensah’s willingness to enter into a negotiated disposition aided the disciplinary
process, by avoiding undue consumption of time and resources. In the petition for
negotiated disposition, Disciplinary Counsel noted additional mitigating
circumstances: after Mr. Mensah discovered the misappropriation, he
acknowledged the misconduct, brought the misconduct to Disciplinary Counsel’s
attention, hired a bookkeeper at his own expense to provide an accounting, and
deposited personal funds to return the misappropriated funds.
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After the parties filed a motion seeking approval of the negotiated-discipline
agreement, the court requested the views of the Board on Professional
Responsibility. D.C. Bar R. XI, § 12.1(d) (“The Court in exceptional cases may
request the views of the Board concerning the appropriateness of a negotiated
disposition.”). The Board responded by supporting the petition for negotiated
discipline. The Board acknowledged that Addams would require disbarment if this
were a contested case. The Board agreed with the Hearing Committee, however,
that additional flexibility was permissible in the context of negotiated discipline and
that the agreed-upon sanction in this case was justified and not unduly lenient.
II.
In Addams, this court, sitting en banc, held that
in virtually all cases of misappropriation, disbarment will
be the only appropriate sanction unless it appears that the
misconduct resulted from nothing more than simple
negligence. While eschewing a per se rule, we adhere to
the presumption laid down in our prior decisions and shall
regard a lesser sanction as appropriate only in
extraordinary circumstances. We have found such
circumstances in In re Kersey, 520 A.2d 321 (D.C. 1987),
and may find other circumstances calling for a lesser
sanction in the future. But, as a matter of course, the
mitigating factors of the usual sort, see, e.g., In re Reback,
513 A.2d 226, 233 (D.C. 1986) (en banc), will suffice to
overcome the presumption of disbarment only if they are
especially strong and, where there are aggravating factors,
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they substantially outweigh any aggravating factors as
well.
579 A.2d at 191.
In adopting that view, the court in Addams emphasized the importance of
avoiding the “erosion of public confidence in the integrity of the bar” and concluded
that, “where client funds are involved, a more stringent rule is appropriate.” 579
A.2d at 198.
The decision in Addams has generated substantial controversy and criticism
over the years. See, e.g., In re Gray, 224 A.3d 1222, 1234-35 (D.C. 2020) (referring
to Addams as “inflexible and sometimes harsh,” but also explaining rationale for
decision) (per curiam); id. at 1225 n.1 (noting that four Board members thought
sanction mandated by Addams was too harsh); In re Ahaghotu, 75 A.3d 251, 258-59
(D.C. 2013) (referring to “a continuing current of discontent” with Addams, but
noting that Addams was binding on division); In re Pleshaw, 2 A.3d 169, 174-75
(D.C. 2010) (noting “oddity” of result required by Addams but also noting that
Addams was binding); In re Bach, 966 A.2d 350, 351-53 (D.C. 2009) (treating Board
as implicitly asking court to reconsider Addams, noting that Addams was binding,
and quoting statement from earlier case that “[i]ndividual members of this division
believe the result Addams dictates in this case is a harsh one”) (ellipses omitted;
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quoting In re Pels, 653 A.2d 388, 398 (D.C. 1995)); In re Bach, 966 A.2d at 353-57(Ferren, J., concurring) (urging reconsideration of Addams); In re Berryman, 764
A.2d 760, 765 (D.C. 2000) (noting that Board took position that Addams is “too
inflexible”) (internal quotation marks omitted); id. at 774 (Farrell, J., concurring)
(declining to endorse Board’s position that Addams is too inflexible); In re Pierson,
690 A.2d 941, 951 (D.C. 1997) (Schwelb & Ruiz, JJ., concurring) (describing rule
of Addams as “far too inflexible” and “harsh”).
III.
In 2008, this court established procedures to govern negotiated discipline.
D.C. Bar R. XI, § 12.1. Under those procedures, an attorney and Disciplinary
Counsel can enter into an agreement stipulating that the attorney violated specified
Rules of Professional Conduct and agreeing upon an appropriate sanction. Id.
§ 12.1(a), (b). A Hearing Committee reviews the agreement to determine whether
(1) the attorney’s consent was knowing and voluntary, (2) the underlying facts
support the misconduct and sanction reflected in the agreement, and (3) the sanction
is “justified.” Id. § 12.1(c). If the Hearing Committee recommends approval of the
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agreement, this court “review[s] the recommendation in accordance with its
procedures for the imposition of uncontested discipline.” Id. § 12.1(d).
Under the procedures for imposition of uncontested discipline, “if no
exceptions are filed to the Board’s report, the [c]ourt will enter an order imposing
the discipline recommended by the Board upon the expiration of the time permitted
for filing exceptions.” D.C. Bar R. XI, § 9(h)(2). “This rule is not absolute—we
would not impose discipline that is clearly against the law or the public interest, for
example, merely because no party took exception to it . . . .” In re Stephens, 247
A.3d 698, 701 (D.C. 2021) (per curiam). Nevertheless, if “there are no exceptions
to the Board’s report and recommendation, our deferential standard of review
becomes even more deferential.” In re Viehe, 762 A.2d 542, 543 (D.C. 2000) (per
curiam).
If the court adopts recommended negotiated discipline, the court will explain
its decision in a brief per curiam opinion. D.C. Bar R. XI, § 12.1(d). As previously
noted, however, opinions in negotiated-discipline cases generally may not be cited
as precedent in contested-discipline cases. Id.
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IV.
We first consider whether the negotiated-discipline process permits
imposition of a sanction that is less stringent than our decision in Addams would
otherwise require in cases of contested discipline. We hold as a matter of law that
the negotiated-discipline process does permit a somewhat more flexible approach to
the appropriate sanction in cases of reckless misappropriation. See, e.g., In re
Rachal, 251 A.3d 1038, 1041 (D.C. 2021) (court does not defer to Board on
Professional Responsibility on issues of law).
The negotiated-discipline process is designed to encourage efficient and
timely resolution of attorney-discipline matters. Disciplinary Counsel argues that,
in order to achieve that purpose, the negotiated-discipline process must permit
imposition of sanctions that are somewhat less stringent than might otherwise have
been required in a contested-discipline cases, at least in a negotiated-discipline
proceeding involving reckless misappropriation otherwise controlled by Addams.
More specifically, Disciplinary Counsel contends that affording such flexibility will
(1) provide incentives for attorneys to agree to negotiated discipline, thereby
conserving scarce resources and reducing delay in the disciplinary process; and (2)
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reflect appropriate recognition of the mitigating nature of an attorney’s willingness
to acknowledge misconduct and accept an appropriate sanction. The Board, the
Hearing Committee, and Mr. Mensah all support Disciplinary Counsel’s arguments
on these points. We are likewise persuaded.
Moreover, three structural features persuade us that the negotiated-discipline
process necessarily contemplates some additional flexibility in determining an
appropriate sanction. First, under the negotiated-discipline process, the test is
whether the agreed-upon sanction is “justified.” D.C. Bar R. XI, § 12.1(c)(3). That
test by its terms suggests some flexibility in comparing what would be required in
contested-discipline cases. Id. § (9)(h)(1) (requiring inquiry into whether
recommended discipline would “foster a tendency toward inconsistent
dispositions”). Second, as already noted, negotiated-discipline recommendations
are reviewed by this court with considerable deference. In re Viehe, 762 A.2d at
543. Third, also as already noted, this court’s decisions in negotiated-discipline
cases are not generally citable as precedent in contested-discipline cases. D.C. Bar
R. XI, § 12.1(d). The last point in particular seems telling, because we see one
obvious reason for precluding reliance on negotiated-discipline cases as precedent
in contested-discipline cases: the sanctions imposed in negotiated-discipline cases
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may in some cases be less stringent than would otherwise have been appropriate in
a contested-discipline case.
We do not mean to suggest that the sanctions in negotiated-discipline cases
may become completely unmoored from the sanctions that would be appropriate in
contested-discipline cases. The negotiated-discipline process itself reflects
numerous procedural constraints intended to ensure the bottom-line requirement that
any sanction imposed be “justified.” D.C. Bar R. XI, § 12.1(c)(3). Specifically, (1)
the petition for negotiated discipline must provide a clear factual basis for the
proposed discipline, id. § 12.1(b)(1); (2) the petition must also include a statement
explaining the basis for the agreed-upon proposed sanction, including citation to
relevant precedent, id. § 12.1(b)(1)(iv); (3) the petition is subject to review by a
Hearing Committee and (upon request of the court) by the Board, id. § 12.1(c), (d);
and (4) this court must ultimately approve the negotiated discipline, id. § 12.1(d).
Our cases make clear that this court’s approval of negotiated discipline is not
automatic, and that instead the court scrutinizes the appropriateness of the agreed-
upon sanction in negotiated-discipline cases. In In re Harris-Lindsey, 19 A.3d 784(D.C. 2011) (per curiam), we declined to accept an agreed-upon sanction of a one-
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year suspension, partially stayed in favor of probation, for what the parties
characterized as negligent misappropriation. Although a Hearing Committee
recommended approval, this court invited the views of the Board. Id. at 784. The
Board opposed approval, expressing concern that further factual development was
needed to determine whether Ms. Harris-Lindsey’s misappropriation was negligent
or instead reckless, which might be critical to determining the proper sanction. Id.
at 784-85. Agreeing with the Board, this court rejected the petition for negotiated
discipline. Id.A second case, In re Rigas, 9 A.3d 494 (D.C. 2010) (per curiam), involved
the intersection between negotiated discipline and the statutory requirement of
disbarment for attorneys convicted of a crime of moral turpitude. D.C. Code
§ 11-2503(a) (2012 Repl.). To prevent the possibility that negotiated discipline
could operate to circumvent that statutory requirement, the Board adopted guidelines
providing that a Hearing Committee could approve negotiated discipline in cases
involving criminal convictions only if the Hearing Committee certified
(1) that the crime does not involve moral turpitude per se;
(2) that Bar Counsel has exhausted all reasonable means
of inquiry to find proof in support of moral turpitude, and
explaining those efforts; (3) that Bar Counsel does not
believe that there is sufficient evidence to prove moral
turpitude on the facts; (4) that all of the facts relevant to a
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determination of moral turpitude are set forth in the
petition; and (5) that any cases regarding the same or
similar offenses have been cited in the petition.
Rigas, 9 A.3d at 497. This court adopted the Board’s guidelines. Id. at 498.
As the foregoing should make clear, our ruling in this case is narrow. We
hold that the negotiated-discipline process in certain circumstances permits some
flexibility in determining the sanction to be imposed. In particular, we hold that
such flexibility may in certain circumstances permit a sanction of less than
disbarment in negotiated-discipline cases involving reckless misappropriation, even
if the other circumstances of the case did not rise to the level of “extraordinary
circumstances” as that phrase has been understood in the context of contested
reckless-misappropriation cases. We express no view as to whether, and if so in
what circumstances, the negotiated-discipline process could permit imposition of a
sanction of less than disbarment in a case involving intentional misappropriation in
the absence of exceptional circumstances.
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V.
Finally, we must determine whether the agreed-upon sanction in this case is
justified under all of the circumstances. Both the Hearing Committee and the Board
have determined that the agreed-upon sanction is justified. Essentially for the
reasons stated by the Hearing Committee and the Board, we conclude that the
agreed-upon sanction is justified under the circumstances of this case.
Accordingly, it is
ORDERED that respondent Paul T. Mensah is hereby suspended from the
practice of law in the District of Columbia for three years, with reinstatement
conditioned on a showing of fitness. Under D.C. Bar R. XI, §§ 14(g) and 16(c), Mr.
Mensah will not be eligible to apply for reinstatement until three years after he files
an affidavit that complies with § 14.
So ordered.