# In Re Cope

> District of Columbia Court of Appeals · January 24, 1983 · 455 A.2d 1357

URL: https://www.frixlaw.com/law-library/cases/9641764

## Case

- **Full name:** In Re Donald E. COPE, a Member of the Bar of the District of Columbia Court of Appeals
- **Court:** District of Columbia Court of Appeals
- **Decided:** January 24, 1983
- **Citations:** 455 A.2d 1357; 1983 D.C. App. LEXIS 302
- **Precedential status:** Published
- **Opinion:** Concurrence by Ferren
- **Judges:** Ferren, Kern, Nebeker, Fer-Ren
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641764

## Opinion text

FERREN, Associate Judge,
concurring in the result:
I agree that this case should be remanded to the Board for reconsideration in light of In re Whitlock, D.C.App., 441 A.2d 989 (1982), including reference to mitigating factors proffered by respondent. See id. at 992 . I cannot join in the opinion of the court, however, because it suggests more problems with the Hearing Committee and Board proceedings than are reasonably in-ferable from the reports before us.
First, the majority perceives that the Hearing Committee improperly “evaluated respondent’s fitness to practice law generally upon the basis of how he had presented his defense at the hearing.” Ante at 1361. I do not understand the Committee, in the excerpt quoted by the majority, to have done so. The reference to “the Committee’s own observation of [respondent] in this proceeding,” ante at 1361, strikes me more as a comment on respondent’s demeanor as his own witness than on his competence at self-representation. While this distinction may not be clear cut, I think it is important that the court not strain — as I believe the majority does — to put a gloss on the Committee’s words that is not clearly there. In short, I cannot agree that the Committee evaluated respondent’s general fitness to practice law, in part, by grading his professional skills at the hearing itself.
*1363 Second, the Hearing Committee concluded that respondent “deliberately acted in a manner that resulted in prejudice and damage to his client by his failure to properly present an appeal to the District of Columbia Court of Appeals.” I cannot agree with my colleagues that the Committee here was evaluating respondent’s “effectiveness in presenting his [client’s] appeal,” ante at 1361, in the professional skills sense. Rather, the Committee was simply commenting on respondent’s failure to follow court orders with respect to the appeal and otherwise to carry out the basics of his professional obligation.
Finally, I disagree with the following distinction my colleagues present:
While a complete failure by an attorney to represent his client — as was in the situation in In re Whitlock — seems relevant to a determination of client neglect by an attorney, we are not persuaded that the Board and its Hearing Committee should also undertake an evaluation of an attorney’s effectiveness in presenting his appeal.
Ante at 1361. In every case there will be an area of tactical judgment by the lawyer, on behalf of the client, that a disciplinary authority should not second-guess. See In re Thorup, D.C.App., 432 A.2d 1221, 1226 (1981). But there obviously can be defaults in basic professional responsibilities during the course of representation for which an attorney should be called to account. DR 6-101 (Failing to Act Competently). In evaluating neglect and related ethical violations, the Board on Professional Responsibility and this court should not limit the reach of the disciplinary process only to “a complete failure by an attorney to represent his client.” Ante at 1361. The majority, in crafting the sentence containing this language, may not have intended to limit neglect inquiries so sharply; I hope not. But their language is worrisome. Because the length of the disciplinary reach into areas of attorney judgment is more directly presented in other cases pending before this court, I will not comment further on that subject here.
In sum, in remanding this case to the Board, the majority expresses several concerns which, I respectfully submit, are simply not reflected in the Committee and Board reports. And there is needless, disturbing dicta on the subject of client neglect.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641764. Public record. Not legal advice.