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In re Ponds12/15/2005
im suspension pending final determination, . . . recommended this case as an appropriate one for lessening of sanction.
Id. at 1280 (citation omitted). Neither Brown nor Bar Counsel filed objections or exceptions to the Board's report. Id. at 1279. We concluded that the recommendation of the Board should be adopted. Id.
Finally, most recently in In re Thyden, 877 A.2d 129 (D.C. 2005), we considered Thyden's claim that the delay in resolving his disciplinary matter warranted dismissal of all charges, or, alternatively, no suspension of his license to practice. We held that Thyden should be suspended for thirty days as recommended by the Board because no prejudice resulted, since he was able to practice law while the matter was being litigated and he did not demonstrate "any meritorious argument challenging the substance of the proceedings." Id. at 140, 145.
In sum, we have permitted mitigation of a sanction, in part, because of delay in five cases (Hessler, Schneider, Miller, Starnes, and Brown). In each case the attorney was suspended, and in each case the length of the suspension was reduced to a shorter period of time. In no case have we essentially eliminated a suspension because of delay.
B. Analysis
By reducing a sixty-day suspension to what is, in effect, no suspension at all, the Board has essentially wiped out the sanction entirely. In Fowler, we made clear that "the circumstances of the individual case must be sufficiently unique and compelling to justify lessening what would otherwise be the sanction necessary to protect the public interest." 642 A.2d at 1331. We conclude that the Board erred in considering the circumstances in this case to be sufficiently unique and compelling to warrant the effective elimination of the sanction. The very fact that respondent never raised the issue of delay at any point in this proceeding demonstrates that there is nothing particularly unique and compelling about the delay in this case. Furthermore, respondent does not assert that he suffered any prejudice as a result of the delay. As was the case in Fowler, " hatever may be the unique and compelling circumstances sufficient to mitigate an otherwise appropriate disciplinary sanction necessary to protect the public interest, none such exists here." Id.
In all of the cases where we have reduced a sanction because of delay, there were additional mitigating factors which warranted the reduction. In the case before us, there are no additional legitimate mitigating factors. As the Board itself said in its report, " n the final analysis, we find nothing unusually persuasive or compelling in the . . . mitigating factors adduced by the parties." In light of the fact that there are no additional mitigating factors, the Board should not have reduced the recommended suspension in this case to the extent it did. Furthermore, as we noted above, in the cases where we have agreed with the Board that the circumstances of the delay were sufficiently unique and compelling to warrant a reduction in sanction, the sanction (in every case a suspension) was always reduced to a shorter period of time, not reduced to where it is effectively no suspension at all, as the Board recommends here.
In sum, considering the absence of any asserted prejudice and the lack of any other mitigating factors, we conclude the circumstances here were not sufficiently unique and compelling to justify the reduction of the suspension from sixty days to essentially no suspension at all. As we noted in Williams II, supra, " ny betrayal of the trust which the attorney is sworn to keep demands appropriate discipline . . . a delay in prosecution, . . . cannot override this necessi
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