May 24 — A lawyer who fell asleep and started snoring during a continuing legal education program deserves the same sanction he got in Virginia—a six-month suspension—for denying it to a Virginia bar investigator, the District of Columbia Court of Appeals decided May 12 ( In re Hartke, 2016 BL 151253, D.C., No. 15-BG-984, 5/12/16 ).
The lawyer missed the mark by arguing that sleeping and snoring in a CLE class don't constitute misconduct in the District of Columbia, the court said. He wasn't suspended for that conduct but rather for not correcting his misstatements in the Virginia disciplinary proceeding, it said.
The per curiam opinion illustrates how lawyers who misbehave can create more trouble for themselves by not coming clean with disciplinary investigators. The court didn't discuss what ethics charges the lawyer might have faced in Virginia if he had told the truth.
Disciplinary counsel in D.C. sought identical reciprocal discipline for Wayne Richard Hartke after the Virginia State Bar disciplinary board suspended him from practice in that jurisdiction for six months.
The Virginia board's order said Hartke stipulated that he fell asleep and began snoring during the morning session of a CLE seminar, and that the seminar coordinator had to intervene and wake him up.
Hartke also stipulated that during the afternoon session, he began talking loudly and making outbursts even after the seminar coordinator asked him to stop. An attendee who led Hartke out of the room said he smelled alcohol on him, and another attendee saw a nearly empty liquor bottle among the lawyer's possessions and said Hartke appeared to be intoxicated. Hartke admitted to an attendee that he'd been drinking, the board said.
However, Hartke didn't admit his misbehavior to Virginia disciplinary authorities. He denied falling asleep and snoring during the morning session, and he denied bringing alcohol to the seminar and being intoxicated. Later Hartke admitted those statements weren't accurate and that he didn't correct his misstatements, the court said.
Rule 8.1(b) requires lawyers to disclose facts necessary to correct a misapprehension they know has arisen in connection with a disciplinary matter. Rule 8.4(a) makes it professional misconduct to violate or attempt to violate the professional conduct rules.
The court of appeals said its reciprocal discipline rules impose a rigid standard of presumptively imposing identical discipline unless the attorney shows by clear and convincing evidence that the case falls within one of five specified exceptions.
Hartke tried to invoke D.C. Bar Rule XI, §11(c)(5), which provides an exception when the misconduct elsewhere doesn't constitute misconduct in D.C. Sleeping and snoring aren't misconduct in D.C., he contended.
The court didn't buy it. Virginia didn't suspend Hartke for that conduct but rather for failing to correct misrepresentations in the disciplinary proceeding, it said.
Rule 8.1 of the D.C. Rules of Professional Conduct prohibits misrepresenting facts in a disciplinary proceeding, the court pointed out. It also cited Rule 8.4(c) which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation.
Hartke urged the court to consider mitigating circumstances, but it found no reason to look behind the sanction imposed in Virginia. The disciplinary process in that state afforded Hartke a right to present evidence of mitigation, it said.
The court imposed a six-month suspension from practice in D.C. starting no later than the date when Hartke notified D.C. of his Virginia suspension. The six-month suspension period has already run, it noted.
Judges Corinne Ann Beckwith, Roy W. McLeese and William C. Pryor were on the panel.
Hartke, of Reston, Va., represented himself. Disciplinary Counsel Wallace E. Shipp Jr. and Assistant Disciplinary Counsel William R. Ross, Washington, represented their office.
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The Virginia disciplinary order is at http://www.vsb.org/docs/Hartke-050615.pdf.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
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