Source: Losing Strategy Does Not Establish Ethics Violation -Legal Profession Blog
Losing Strategy Does Not Establish Ethics Violation
An Ad Hoc District of Columbia Hearing Committee, applying Virginia law, proposes a 45-day suspension with automatic reinstatement for an attorney’s alleged mishandling of a wrongful death case in Virginia federal court.
The disciplinary case is In re Gregory Lattimer
During that [summary judgment] hearing, the Court noted that “I think you should have sued the lady who was supposed to sit in the yellow chair. That is the person whose error or whose inattentiveness led to the death in this case. And if you had sued her, you would have had a slam dunk. And I think the state probably has insurance to cover that. At least they did when I was in the Attorney General’s office.” (D.C. Exh. 31 at 29). However, in its Rule 26(a) disclosures, the Commonwealth had answered “N/A” to the question whether there was any insurance agreement available for inspection and copying. (D.C. Exh. 4B at 3).
In the losing appeal to the United States Court of Appeals for the Fourth Circuit
In her opinion for the Court, Judge Thacker noted Respondent’s statements concerning Dr. Davis and his misstatement as to when the Complaint was filed. On May 2, 2014, Judge Thacker referred the matter to Disciplinary Counsel, saying “I forward it for your consideration inasmuch as I question Mr. Lattimer’s handling of the case as well as his candor to the court.” Respondent never sent Ms. Wilkins a copy of the Court of Appeals decision. (citations to record omitted)
***the Committee does not believe Disciplinary Counsel has shown that Respondent’s misconduct in this case raises serious questions as to his fitness to practice law. Respondent’s misconduct occurred in a single case; it was a difficult case and he was dealing with a difficult client. While his decisions have proven to have been ill-advised, Disciplinary Counsel has not shown that they were unreasoned or beyond the discretion accorded lawyers in making strategy decisions. He should have done more homework before launching on his perilous flight, but that does not mean that his theory of the case establishes that he lacks the capacity to practice law. Indeed, the record here indicates that there was substantial preliminary evidence to support his theory. His problem is that he did not conduct a sufficient fact inquiry before filing the Complaint and waited too long to file it.
Disciplinary Counsel had sought a 90-day suspension with fitness.
– Michael Frisch