In re Downey, 960 A.2d 1135 (D.C. 2008)

Brief Summary
The District of Columbia Court of Appeals declined to order an interim suspension of the license of an attorney who pled guilty to a felony. The court applied a test similar to that used for deciding a preliminary injunction.

Complete Summary
In July 2008, attorney Barry Downey pleaded guilty to the felony of running a money transmission business without a license. He then ceased operation of the business until proper licensing could be obtained and reported his plea to the Office of Bar Counsel. Bar Counsel in turn notified the D.C. Court of Appeals.

The issue before the court was whether to suspend Downey’s license pending resolution of disciplinary proceedings. The D.C. Bar rules call for suspension when an attorney has pleaded guilty to a “serious crime.”  Id. at 1136 (quoting D.C. Bar R. XI, §§ 10(b), (c)). But a suspension order may be set aside when, for “good cause shown,” the court finds it “in the interests of justice to do so.”  Id. (quoting D.C. Bar R. XI, § 10(c)).

The D.C. Court of Appeals found good cause for setting aside the order. The burden was on Downey, the court held, to establish good cause via four factors similar to those used in deciding a preliminary injunction:

• whether allowing him to continue to practice poses an undue risk of harm to the public;
• whether there is a substantial likelihood, based on the available evidence, that the disciplinary proceeding will result in imposition of a ‘significant sanction’;
• whether ‘the balance of injuries’ favors stay of the suspension; and 
• related to all these, whether ‘a suspension is in the public interest.’”

Id. at 1137 (quoting In re Malvin, 466 A.2d 1220, 1223 (D.C. 1983)). The court found a low degree of risk of harm to the public because Downey had no prior disciplinary record, his crime did not involve scienter or moral turpitude, and his misconduct occurred outside of his legal practice. For these same reasons, the court found it unlikely that Downey would receive a significant sanction. Finally, the court found the balance of harms in favor of Downey based on his potential loss of livelihood and the ability to support his family.

Significance of Opinion
This opinion marks a departure from the usual practice of automatically suspending attorney licenses in the wake of felony pleas.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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