In Re Artis

SCHWELB, Associate Judge,

concurring:

I agree that we must accord considerable deference to the carefully considered recommendation of the Board on Professional Responsibility, and I therefore agree with the sanction imposed by the court. I also agree with much of the opinion of the court, and especially with its measured approach to the issue of discovery in disciplinary cases. I write separately, however, because I have some concerns regarding the court’s treatment of the question whether Mr. Artis and Bar Counsel have adequately preserved certain contentions.

The Hearing Committee recommended that Mr. Artis be suspended from practice for thirty days, and that he be required, inter alia, to demonstrate his fitness to practice as á condition of reinstatement. Mr. Artis filed no exceptions to this recommendation, and even when the Board came to his rescue, he failed to file a brief in this court. In other words, Mr. Artis did not simply neglect to preserve an issue; his inaction was analogous to failure to file an appeal. Under the circumstances, giving Mr. Artis every possible benefit of any conceivable doubt, I should think that he is entitled, at best, to review under “the dis *104 ciplinary counterpart of [the] plain error [standard].” In re Holdmann, 834 A.2d 887 , 889 n. 8 (D.C.2003). I question whether Mr. Artis can satisfy either prong of that standard with respect to the requirement that he demonstrate fitness; that requirement is not “obviously” wrong, nor would it constitute a serious miscarriage of justice. Id. at 889-90 n. 3. In fact, Mr. Artis’ overall performance in this matter raises at least a reasonable question whether we should have confidence that he should be representing clients in the immediate future. One would expect much more from an attorney who was admitted to our Bar in 1972. I recognize that the members of the Board did not duck the preservation issue but considered it very carefully, and I am not prepared to reject the Board’s recommendation. Nevertheless, I must confess to a measure of discomfort over our treating Mr. Artis’ failure to file exceptions, for purposes of this case, as if it had not happened.

My disquiet in this regard is reinforced by the court’s treatment of Bar Counsel with respect to an argument made for the first time in this court. Before the Board, Bar Counsel claimed that Mr. Artis should be required to prove fitness as a condition of reinstatement, but she did not argue that this requirement should be imposed in part on the basis of his “psychological/emotional/mental status.” Bar Counsel did make this additional argument before this court. In other words, Bar Counsel raised a new argument in support of a previously presented, and thus preserved, claim. But “once a ... claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments made below.” West v. United States, 710 A.2d 866 , 868 n. 3 (D.C.1998) (quoting Yee v. Escondido, 503 U.S. 519, 534 , 112 S.Ct. 1522 , 118 L.Ed.2d 153 (1992)). Under these circumstances, I believe that Bar Counsel preserved her right to base her argument, in part, on Mr. Artis’ mental and emotional state. By any measure, Bar Counsel preserved her claim far more diligently than Mr. Artis preserved (or, more precisely, failed to preserve) his.

Having said all of the foregoing, I am still prepared to defer to the Board’s carefully considered recommendation and to express agreement with much of the court’s opinion. Nevertheless, at least for me, it is quite a close call.