As we learned in the Watergate era, “It’s not the crime — it’s the cover-up,” and that truism has an analog in the world of lawyer ethics, as a recent disciplinary case out of the District of Columbia illustrates.
Tale of the snoring lawyer
Like many who practice in the D.C. area, the lawyer was licensed in both the District and Virginia. In 2014, the lawyer went to a CLE seminar in Virginia. As described in the disciplinary opinion, “during the morning session, [the lawyer] fell asleep and began snoring, causing the seminar’s coordinator to intervene and wake [him].”
Things went from bad to worse in the afternoon session, when the lawyer “began talking loudly at a video presentation and continued to do so after the seminar coordinator asked him to stop. In response to [the lawyer’s] continued outbursts, another attendee led [him] from the room. That attendee smelled alcohol on [the lawyer’s] person. … [He] admitted to one attendee that he had been drinking.”
In the Virginia State Bar inquiry, the lawyer at first denied everything — being intoxicated, falling asleep and snoring. That denial started the snowball rolling, because later, the lawyer had to admit “that those representations were not accurate,” and further, “that he did not take the steps necessary to correct his misrepresentations.”
The lawyer and the Virginia State Bar Disciplinary Board stipulated that he had violated the Virginia Rules of Professional Conduct, which, like their Model Rule 8.1(b) counterpart, makes it misconduct to “fail to disclose a fact necessary to correct a misapprehension known by a lawyer to have arisen” in connection with a bar discipline matter.
The penalty in Virginia: a six-month suspension. But that didn’t end the matter.
Reciprocal discipline woes
Many lawyers don’t realize that multiple licensure carries with it multiple exposure to disciplinary sanctions; all jurisdictions have rules mandating consideration of reciprocal discipline in their jurisdiction when a lawyer with a license there is disciplined in another jurisdiction.
That’s what happened to the lawyer here — the D.C. bar rules “presumptively impos[e] identical reciprocal discipline, unless the attorney demonstrates by clear and convincing evidence” some exception.
The lawyer argued that his Virginia suspension was based on “sleeping and snoring in a [CLE] class,” and that he was disciplined in Virginia for conduct that “does not constitute misconduct in the District of Columbia.”
Not so, said the D.C. Court of Appeals.
The lawyer’s Virginia discipline did not stem from the conduct at the CLE, according to the court; rather, it was based on the lies to the Virginia State Bar during the proceedings there, and his failure to correct his misrepresentations, until it was too late. Those are ethical violations under the D.C. Rules of Professional Conduct, too, said the court.
Luckily for the lawyer, the Virginia suspension had already expired, and the D.C. Court of Appeals agreed that whether calculated from the beginning date of the Virginia suspension, or the date on which the lawyer reported his Virginia discipline to the D.C. bar, the suspension period had already run.
Therefore, although the lawyer was disciplined with the same six-month suspension in D.C., he effectively served no additional time.
“I cannot tell a lie”
Strict truth-telling in disciplinary matters must be your watchword, whether you snore or not. It’s not the crime, it’s the cover-up, and when you’re dealing with reciprocal discipline you can get a double whammy.