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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-BG-985

IN RE SEAN P. MCMULLEN, RESPONDENT.

A Suspended Member of the Bar

of the District of Columbia Court of Appeals

(Bar Registration No. 980333)

On Report and Recommendation 

of the Board on Professional Responsibility

(BDN-D200-15)

(Submitted March 8, 2016 Decided December 8, 2016)

Timothy J. Battle for respondent.

Wallace E. Shipp, Jr., Disciplinary Counsel, and William R. Ross, Assistant 

Disciplinary Counsel, for the Office of Disciplinary Counsel. 

Before FISHER, EASTERLY, and MCLEESE, Associate Judges.

PER CURIAM: The Virginia State Bar Disciplinary Board (“Virginia Board”) 

revoked respondent Sean McMullen’s license to practice law in the 

Commonwealth of Virginia in July 2015 due to violations of the Virginia Rules of 

Professional Conduct, to which Mr. McMullen stipulated. After receipt of the 

Virginia Board’s decision, this court suspended Mr. McMullen’s license pursuant 

to D.C. Bar Rule XI, § 11 (d), and, because D.C. Bar Rule XI, § 11 (c) establishes

12/8/16
2

a default rule that this court should impose the same discipline as the original 

disciplining jurisdiction, see In re Chaganti, 144 A.3d 20, 23 n.3 (D.C. 2016), 

ordered him to show cause why reciprocal discipline should not be imposed. The 

burden is thus on Mr. McMullen to show by clear and convincing evidence that 

one of the five exceptions to the default rule applies. These exceptions, set forth in 

§ 11 (c),1are narrowly interpreted. See In re Chaganti, 144 A.3d at 23. As we 

have previously made clear, “reciprocal discipline proceedings are not a forum to 

reargue the foreign discipline.” In re Zdravkovich, 831 A.2d 964, 969 (D.C. 2003).

 

1

 An attorney may escape reciprocal discipline only if he can show by clear 

and convincing evidence that: 

(1) The procedure elsewhere was so lacking in notice or 

opportunity to be heard as to constitute a deprivation of 

due process; or 

(2) There was such infirmity of proof establishing the 

misconduct as to give rise to the clear conviction that the 

Court could not, consistently with its duty, accept as final 

the conclusion on that subject; or

(3) The imposition of the same discipline by the Court 

would result in grave injustice; or

(4) The misconduct established warrants substantially 

different discipline in the District of Columbia; or 

(5) The misconduct elsewhere does not constitute 

misconduct in the District of Columbia. 

D.C. Bar R. XI, § 11 (c); see also In re Chaganti, 144 A.3d at 23.
3

Mr. McMullen argues that “[sub]sections 1, 2 and 3 all support [his] request 

for relief,” but fails thereafter to tie his arguments to any particular exception listed 

under Rule XI, § 11 (c). We discern in Mr. McMullen’s submission to this court 

only two arguments against the imposition of reciprocal discipline. First, Mr. 

McMullen argues that he was denied an opportunity in the Virginia proceedings to 

present “all relevant evidence in [his] defense,” seemingly invoking the deprivation 

of due process exception under § 11 (c)(1). Mr. McMullen further argues that, 

instead of imposing identical discipline, this court should impose a “suspended 

suspension,” perhaps invoking the “grave injustice” exception under § 11 (c)(3).2 

We conclude that Mr. McMullen has failed on both grounds to carry his burden to 

show that reciprocal discipline should not be imposed,

3

and thus we order his 

disbarment. 

 

2

 Section 11 (c)(4) might be a better fit for this argument, but Mr. McMullen 

disclaims reliance on that exception.

3

 As noted above, Mr. McMullen asserts that reciprocal discipline is also 

inappropriate under § 11 (c)(2), but this assertion is entirely undeveloped in his 

brief. See Gabramadhin v. United States, 137 A.3d 178, 187 (D.C. 2016) (“[I]t is 

not enough merely to mention a possible argument in the most skeletal way, 

leaving the court to do counsel’s work, create the ossature for the argument, and 

put flesh on its bones.”). In any event, we note that Mr. McMullen stipulated to all 

of the facts necessary to support the Virginia Board’s findings.
4

I. Procedural Background

In January 2015, the managing partner of Mr. McMullen’s former law firm, 

Lange, Thomas & McMullen, LLP, filed a complaint with the Virginia State Bar 

alleging that Mr. McMullen had neglected two clients’ lawsuits, resulting in 

dismissals with prejudice, and that he had lied to the clients and the law firm about 

the matters for a prolonged period of time, depriving both clients of the ability to 

appeal. Virginia Bar Counsel (“Bar Counsel”) interviewed Mr. McMullen about 

the complaint in March 2015, and he signed medical release forms so Bar Counsel 

could obtain his records. But Bar Counsel did not request any of Mr. McMullen’s 

medical records from his doctors. In the meantime, the Virginia Board issued a 

Pre-Hearing Order directing Mr. McMullen to comply with the Rules of the 

Supreme Court of Virginia with respect to “impairment evidence.”4 

As of June 12, 2015, the date of a prehearing conference call, Mr. McMullen 

had not provided notice, pursuant to the Pre-Hearing Order, of his intent to present 

 

4

 The Virginia rules direct any “Respondent who intends to rely upon 

evidence of an Impairment in mitigation of Misconduct” to “provide notice not less 

than 14 days prior to the hearing to Bar Counsel and the . . . Board of his or her 

intention to do so.” Va. Sup. Ct. R. Pt. 6, § 4, ¶ 13-12 (F); see also Va. Sup. Ct. R.

Pt. 6, § 4, ¶ 13-23 (A).
5

impairment evidence at his June 26, 2015 hearing. Thus, Bar Counsel indicated 

during the call that it would object to presentation of any such evidence at Mr. 

McMullen’s disciplinary hearing. Nevertheless, Mr. McMullen attempted to 

introduce at the hearing evidence that he suffered from depression. The Virginia

Board sustained an objection from Bar Counsel and excluded this evidence. Mr. 

McMullen stipulated to Bar Counsel’s factual assertions regarding his misconduct, 

admitting facts sufficient to show he had violated Virginia Professional Conduct 

Rules regarding competence, diligence, communication, terminating client 

representation, and dishonesty. See Va. R. Prof’l Conduct 1.1, 1.3 (a)–(c), 1.4 (a)–

(c), 1.16 (a)(1)–(3), & 8.4 (a)–(c). The Virginia Board, after considering 

aggravating and mitigating circumstances,5revoked his license. 

We now consider whether Mr. McMullen has demonstrated that we should 

not impose the same discipline. 

 

5

 The Virginia Board considered the following aggravating factors: a prior 

public reprimand from the Virginia State Bar; “Respondent’s dishonest or selfish 

motives”; his pattern of misconduct involving multiple clients; “Respondent’s 

refusal to acknowledge the wrongful nature of his conduct”; the vulnerability of 

the clients; and “Respondent’s substantial experience in the practice of law.” In 

mitigation, the Board considered Mr. McMullen’s cooperation with the 

investigation.
6

II. Due Process Analysis

We review due process claims in reciprocal discipline cases not as an 

appellate court for “foreign disciplinary proceedings,” but only to see if “any 

serious defects were present in the foreign proceedings . . . such that it would be 

wrong to impose reciprocal discipline here.” In re Chaganti, 144 A.3d at 24

(alteration in original). Mr. McMullen never actually asserts that he was denied 

due process in the Virginia proceedings such that reciprocal discipline should not 

be imposed pursuant to § 11 (c)(1), but, by recounting the procedural history of his 

Virginia disciplinary proceedings, he suggests that, because Bar Counsel had

actual notice that he suffered from depression, the Virginia Board unfairly 

precluded him from presenting this mitigating evidence. 

Specifically, Mr. McMullen argues that he “reasonably expected” that Bar 

Counsel would investigate whether he had an impairment defense because he was 

interviewed by Bar Counsel’s investigator and gave him two signed medical 

releases. But, after the investigation, the Virginia Board issued an order directing 

Mr. McMullen to comply with the timetable in the Virginia Supreme Court’s rules 

for providing notice of an intent to present impairment evidence. 
7

On the record presented to us, we have no reason to believe it was a due 

process violation for the Virginia Board to enforce its rules. Even if Mr. 

McMullen initially made a “good faith procedural error,” he was alerted to his 

mistake at the prehearing conference. At that point he could have made the actual 

notice argument he seems to raise before this court and sought permission to 

present his impairment evidence.

6 But Mr. McMullen has not provided this court 

with any evidence that, at or subsequent to his disciplinary hearing, he challenged 

the exclusion of his impairment evidence. Accordingly, Mr. McMullen has failed 

to carry his burden to show that the Virginia Board’s decision to deny presentation 

of impairment evidence amounted to a due process violation, as opposed to the 

lawful consequence of his own forfeiture. Cf. In re Richardson, 692 A.2d 427, 434 

(D.C. 1997) (“[A]s a consequence of Richardson’s Florida waiver, we are entitled 

to rely—for purposes of final, reciprocal discipline—on the disciplinary result in 

Florida, properly certified to this court, without affording Richardson the 

evidentiary hearing [he waived]. Put succinctly: if Richardson validly waived an 

evidentiary hearing in Florida, he is deemed to have waived any evidentiary 

 

6

 See Va. Sup. Ct. R. Pt. 6, § 4, ¶ 13-12 (F) (excusing noncompliance upon a 

showing of “good cause”).
8

hearing on the same charges that would otherwise be required by due process 

before he could be suspended from the practice of law in this jurisdiction.”).7 

III. Alternative Sanction

Mr. McMullen also argues that a more appropriate sanction from this court 

would be a “suspended suspension.” In support of this argument, Mr. McMullen 

references In re Vohra, a bar discipline case in which this court accepted the D.C. 

Board on Professional Responsibility’s proposed suspended sentence after finding 

that the respondent “suffer[ed] from a major depression at the time” of his 

misconduct but “ha[d] improved with treatment.” 762 A.2d 544, 544 (D.C. 2000). 

Though evidence that an attorney suffered from “diagnosable, chronic 

depression” that was causally related to his misconduct can mitigate a sanction, In 

re Peek, 565 A.2d 627, 633 (D.C. 1989), the attorney has the burden to prove his 

 

7

 Mr. McMullen also asserts that he was “unable to secure the attendance of 

his medical professionals to present live testimony” because the hearing was held 

in Richmond, Virginia, not Washington, D.C. We do not address this argument in 

light of Mr. McMullen’s failure to provide timely notice of his intent to present this 

evidence. 
9

disability by clear and convincing evidence.8 See In re Silva, 29 A.3d 924, 934 

(D.C. 2011); In re Edwards, 870 A.2d 90, 95 (D.C. 2005). Due to his forfeiture, 

Mr. McMullen has not made the threshold showing that he suffered from a

disability. Cf. In re Edwards, 870 A.2d at 96 (declining to consider mitigation 

evidence where attorney failed to present evidence first to a hearing committee). 

In the absence of any record evidence that he suffered from depression and that 

this disability compromised his ability to practice law, we decline to consider 

whether Mr. McMullen should receive a lesser sanction in this jurisdiction.

9

IV. Conclusion

Mr. McMullen has failed to prove, by clear and convincing evidence, any of 

the exceptions to reciprocal discipline in D.C. Bar Rule XI, § 11 (c). We therefore 

 

8

 Having carried this burden, the attorney must then also “prove by a 

preponderance of the evidence that the [disability] substantially caused him to 

engage in that misconduct[ and] prove by clear and convincing evidence that he 

now is substantially rehabilitated.” In re Stanback, 681 A.2d 1109, 1115 (D.C. 

1996).

9

 Mr. McMullen’s reliance on In re Pearson, 628 A.2d 94 (D.C. 1993), to 

support his argument that this court should impose a different or lesser penalty is 

misplaced. In that case we determined that the attorney had carried his burden to 

show a due process violation under § 11 (c), id. at 99; as discussed above, 

however, Mr. McMullen has failed to carry his burden to prove his due process 

rights were violated in Virginia. 
10

order that he be disbarred from the practice of law in the District of Columbia. For 

purposes of applying for reinstatement after five years of disbarment, see D.C. Bar 

R. XI, § 16 (a), Mr. McMullen’s period of disbarment will commence once he 

complies with D.C. Bar Rule XI, § 14 (g).

So ordered.