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In re Ponds12/15/2005
to proceed pro se without appointing new counsel in a separate motions hearing and allowing respondent to represent Mr. Thompson at sentencing . . . [suggests] that the Court had implicitly ordered or sanctioned respondent's continued representation of Mr. Thompson . . . ." We agree with the Board that respondent cannot shift the responsibility for withdrawal in this case to the court. The Rules of Professional Responsibility impose the responsibility to determine whether a conflict exists and to act accordingly on the attorney. That responsibility requires, at a minimum, that in a court proceeding the attorney unequivocally inform the court and client of the conflict and the duty to withdraw imposed by the ethical rules. Only if, after such disclosure, the court were to expressly order the attorney to continue representation might the attorney arguably be excused from the obligation to withdraw.
III.
Having determined that respondent violated Maryland Rules of Professional Conduct 1.7 (b) and 1.16 (a)(1), we now turn to the Board's recommendation that we stay the suspension in this case "in view of the very lengthy [five-year] delay in the disposition of this case" and that execution of the sixty-day suspension be stayed with a six-month period of unsupervised probation, and with the added requirement that respondent complete a continuing legal education course. The Board noted, " e are, of course, mindful of the Court's rule that circumstances must be 'unique and compelling' for delay to become a mitigating factor." It then concluded, however, that "the five-year delay in this case rises to that level" finding that " delay of this length places this case in an exceptional category, at the outermost bounds of known delays within the disciplinary system, and we believe that the Fowler rule allows for mitigation in these circumstances." After considering the relevant case law, we conclude that the circumstances here were not sufficiently unique and compelling as to warrant reducing the sixty-day suspension to what is, in effect, no suspension at all.
A. Case Law
The first case in which we approved the use of delay as a mitigating factor was In re Williams, 513 A.2d 793 (D.C. 1986) (Williams II). Bar Counsel brought disciplinary charges against Williams in 1979 and 1980. Id. at 794. Three years later, we remanded the case back to the Board because we concluded Williams had not been afforded adequate due process protections. In re Williams, 464 A.2d 115 (D.C. 1983) (Williams I).
Eighteen months later, Bar Counsel refiled identical allegations of misconduct against Williams. Williams II, 513 A.2d at 794-95. Williams, in turn, argued that the eighteen-month delay warranted dismissal of the charges for lack of a speedy hearing. The Board accepted Williams' argument and dismissed the disciplinary proceedings. Id. at 795.
In considering the application of the requirement of a speedy trial to attorney discipline cases, we determined that " peedy trial principles, which in criminal cases are a constitutionally required curb on the abuse of government power, in the disciplinary system take second place to other societal interests." Id. at 796. We concluded that " ny betrayal of the trust which the attorney is sworn to keep demands appropriate discipline[,] a delay in prosecution, without more, cannot override this necessity [,]. . . [and that] an undue delay in prosecution is not in itself a proper ground for dismissal of charges of attorney misconduct." Id. (emphasis added).
The issue of delay arose again in In re Hessler, 549 A.2d 700 (D.C. 1988) where the Board considered delay as a mitigating factor in recommending "a sanction neare
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