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             DISTRICT OF COLUMBIA COURT OF APPEALS
                                                                            8/11/16
                                 No. 15-BG-1402

                    IN RE DONALD L. MCCLURE, RESPONDENT.

                           A Member of the Bar of the
                      District of Columbia Court of Appeals
                          (Bar Registration No. 955575)

                          On Report and Recommendation
                    of the Board on Professional Responsibility
                                  (BDN 151-10)

(Submitted July 15, 2016                                 Decided August 11, 2016)

      Before THOMPSON, Associate Judge, and NEBEKER and REID, Senior Judges.

      PER CURIAM: The Board on Professional Responsibility has recommended

that respondent Donald L. McClure be disbarred for violating District of Columbia

Rules of Professional Conduct 1.1 (a) and (b), 1.5 (a), 3.3 (a), 3.4 (c), and 8.4 (c)

and (d) during his representation of clients in a medical malpractice case.1 For the

reasons stated below, we accept the recommendation of the Board.



      1
         Disciplinary Counsel proceeded against both Mr. McClure and his co-
counsel in the medical malpractice litigation, Bernard Bettis. However, the Board
dismissed the case against Mr. Bettis as moot upon notification of his death in
November 2015.
                                          2

                             FACTUAL SUMMARY



      Mr. McClure represented Sharon Marbury, her minor child, and her

granddaughter in a medical malpractice case alleging negligence against several

health providers in the prenatal care of the minor child as well as in the delivery of

the granddaughter; the complaint also alleged that the alleged negligence resulted

in extensive and permanent physical and emotional damage to the minor child and

the granddaughter.2 After Disciplinary Counsel filed specification of charges, the

designated Ad Hoc Hearing Committee held a two-day evidentiary hearing.

Following the hearing, the Ad Hoc Committee made extensive factual findings on

each of the charged violations and determined that Mr. McClure violated Rules 1.1

(a) and (b), 1.5 (a), 3.3 (a), 3.4 (c), and 8.4 (c) and (d). Based on its view that Mr.

McClure’s dishonesty was not “flagrant,” the Ad Hoc Committee recommended

suspending Mr. McClure for eighteen months with a requirement to prove fitness

as a condition of reinstatement. Disciplinary Counsel took exception with respect

to the recommended sanction, contending that Mr. McClure should be disbarred

due to the totality of his misconduct. The Board agreed with Disciplinary Counsel,




      2
         The representation began around June 2005 and continued until August
29, 2008.
                                         3

concluding that “taken as a whole,” Mr. McClure’s conduct warranted the more

severe sanction of disbarment.



      Mr. McClure has been a member of the District of Columbia Bar since May

26, 1978. Prior to taking on the medical malpractice case involving Ms. Marbury,

her minor daughter, and her granddaughter, Mr. McClure apparently had a

successful career, mainly handling medical malpractice cases, but no case

involving obstetrics or a minor child who gave birth. His disciplinary history

consisted of an informal admonition in 2001 for a violation of Rule 8.4 (d). He

does not challenge the substance of the Board’s Report and Recommendations, and

he lodged no brief in this matter. However, he filed a pleading on July 12, 2016,

summarizing his background, and resigning from the District of Columbia Bar,

essentially because of his health (repeated hospitalizations related to heart disease

and diabetes), age (76), and the death of Mr. Bettis after an extended

hospitalization.



                                    ANALYSIS



      D.C. Bar R. XI, § 9 (h)(1) specifies that this court “shall accept the findings

of fact made by the Board unless they are unsupported by substantial evidence of
                                          4

record.” See also In re Rodriguez-Quesada, 122 A.3d 913, 919 (D.C. 2015) (per

curiam). The same rule provides that this court “shall adopt the recommended

disposition of the Board unless to do so would foster a tendency toward

inconsistent dispositions for comparable conduct or would otherwise be

unwarranted.” D.C. Bar R. XI, § 9 (h)(1); see also In re Baber, 106 A.3d 1072,

1076 (D.C. 2015) (per curiam) (quoting In re Vohra, 68 A.3d 766, 771 (D.C.

2013)).    The Board’s recommended sanction “comes to us with a strong

presumption in favor of its imposition. Baber, 106 A.3d at 1076. “[I]f the Board’s

recommended sanction falls within a wide range of acceptable outcomes, it will be

adopted and imposed.” Id.



       Here, the Ad Hoc Committee’s factual findings as to each rule violation by

Mr. McClure, which the Board adopted, are based on substantial record evidence;

hence, we accept the findings of fact. Furthermore, the recommended sanction of

disbarment is consistent with comparable conduct, as reflected in this court’s case

law.      Similar to Mr. McClure’s case, Baber involved a single matter

(representation in the probate of an estate) in which this court found respondent’s

“dishonesty was very serious” (“repeated and protracted”), “came at the expense of

his client’s interests and was in large part driven by a desire for personal gain.” Id.

at 1077. In addition, in Baber, as in Mr. McClure’s case, respondent “showed no
                                        5

remorse during the disciplinary process,” and there were no “countervailing

considerations weighing significantly against disbarment.” Id.



      Mr. McClure’s resignation from the District of Columbia Bar does not

preclude disbarment. Pursuant to D.C. Bar R. II, § 7, “a member of the District of

Columbia Bar who is in good standing and not under investigation as provided in

Rule XI § 7” may elect “to discontinue the practice of law in the District of

Columbia, and to terminate his or her membership in the Bar.”3 Because Mr.

McClure was suspended from the practice of law in the District of Columbia,

effective March 24, 2016, pending the final disposition of this case, he is not a

member in good standing. Moreover, we have stated previously that an attorney

may not “avoid imminent disciplinary review by filing a voluntary resignation on

the eve of the commencement of an investigation or disciplinary proceeding.” In

re Phillips, 452 A.2d 345, 348 (D.C. 1982) (per curiam); see also In re Webster,


      3
        D.C. Bar R. XI, § 12 permits an attorney to consent to disbarment if he “is
the subject of an investigation or a pending proceeding based on allegations of
misconduct.” However, the attorney must declare his or her consent to disbarment
by submitting an affidavit to the Office of Disciplinary Counsel that states: 1)
consent is freely and voluntarily given, 2) the attorney acknowledges any currently
pending investigation, the specifics of which must be set forth, 3) the attorney
acknowledges that the material facts on which the allegations are predicated are
true, and 4) the attorney knows if disciplinary proceedings were brought, the
attorney could not successfully defend against them. Mr. McClure has not filed
such an affidavit.
                                         6

661 A.2d 144, 145 n.2 (D.C. 1995). Nor may an attorney avoid the Board’s

recommended sanction by resigning during temporary suspension and prior to this

court’s decision on the Board’s Report and Recommendation.



      For the foregoing reasons, Mr. McClure is disbarred from the District of

Columbia Bar, effective as of the date of this order. For purposes of reinstatement,

the period of respondent’s disbarment shall run from the date on which he files the

affidavit required by D.C. Bar R. XI, § 14 (g).



                                             So ordered.
