DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : DAVID ABRAHAMSON, : Bar Docket No : Respondent. : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes to the Board on Professional Responsibility (the Board ) from Hearing Committee Number Five (the Committee ), which recommended that Respondent be suspended for six months based upon his misdemeanor criminal conviction. Neither Respondent nor Bar Counsel has taken exceptions. For the reasons set out below, the Board recommends that Respondent be suspended for six months, nunc pro tunc to the date of his filing of the affidavit required under D.C. Bar R. XI, 14(g), on the basis of his criminal conviction and also for violations of Rules of Professional Conduct ( Rules ) 3.4(a), 8.4(b) and 8.4(d). I. PROCEDURAL HISTORY Bar Counsel filed with the Board a Specification of Charges and a Petition Instituting Formal Disciplinary Proceedings in this matter alleging that Respondent violated Rules 3.4(a), 8.4(b), 8.4(c) and 8.4(d). 1 Respondent denied the allegations. In addition, the Committee was directed by the Board to determine whether the crime for which Respondent was convicted involved moral turpitude on the facts, and, if not, for a recommendation of the appropriate final discipline as a result of Respondent s conviction of a serious crime. See Order dated Sept. 17, Bar Counsel s exhibits will be referred to as BX. Respondent s exhibits will be referred to as RX. The transcript of the May 21, 2002 hearing will be referred to as Tr.

2 At the hearing before the Committee, Bar Counsel introduced BX A-D and 1-8, which were received in evidence without objection. Bar Counsel called no witnesses. Respondent testified on his own behalf and submitted RX 1, which was received in evidence without objection. Respondent was represented by counsel. At the conclusion of the hearing, the Committee announced its preliminary, non-binding determination that Bar Counsel had presented evidence sufficient to permit a finding of a violation of at least one of the alleged charges. There was no evidence submitted in aggravation. Respondent presented testimony in mitigation. In its Report and Recommendation ( HC Rpt. ), the Committee determined that Respondent s criminal conduct did not involve moral turpitude and found that Respondent had not violated Rules 3.4(a), 8.4(b), 8.4(c) or 8.4(d), but recommended that Respondent be suspended for six months for his conviction of a serious crime, as defined by D.C. Bar R. XI, 10(b). Bar Counsel stated that she did not necessarily agree with the Hearing Committee s conclusions or reasoning but that, in light of the sanction recommended, she did not except to the Report. Respondent filed no exception. II. FINDINGS OF FACT The Board has reviewed and adopts the Findings of Fact made by the Committee which are set forth herein with minor changes. Background 1. Respondent is a member of the Bar of the District of Columbia Court of Appeals (the Court ), having been admitted on December 19, Hearing Committee Finding ( HC Find. ) 1. 2

3 2. On January 28, 1999, Respondent, along with four others, was charged in a fourcount indictment filed in the United States District Court for the Eastern District of New York with (1) conspiracy to embezzle, steal, obtain by fraud and misapply property in violation of 18 U.S.C. 666(a)(1)(A); (2) equity skimming in violation of 18 U.S.C. 2 and 3551 et seq.; (3) misappropriation of federal funds in violation of 18 U.S.C. 2, 666(a)(1)(A) and 3551 et seq.; and (4) obstruction of federal audits in violation of 18 U.S.C. 2, 1516(a) and 3551 et seq. Each of the four counts charged Respondent with commission of a felony. HC Find On December 8, 1999, Respondent entered a plea of guilty to a misdemeanor offense of unlawful receipt of compensation with the intent to defeat the purposes of the United States Department of Housing and Urban Development ( HUD ), a violation of 18 U.S.C The charge to which Respondent pled was brought in a Superseding Misdemeanor Information. HC Find Respondent s plea was accepted by the court after a hearing. On September 29, 2000, after a sentencing hearing held on September 22, 2000, the court entered a judgment sentencing Respondent to probation for a term of one year, with a special condition that he serve four months home confinement. No fine or restitution order was imposed, and the sentencing order dismissed the charges in the January 28, 1999 felony indictment on the motion of the prosecutor. HC Find A certified copy of Respondent s conviction was brought to the attention of the Court. In re Abrahamson, No. 01-BG-887. On July 26, 2001, the Court suspended Respondent from the practice of law in the District of Columbia and directed the Board to institute a formal proceeding for determination of the nature of the final discipline to be imposed, and specifically to review the elements of the offenses for the purpose of determining whether or not the crime 3

4 involves moral turpitude within the meaning of D.C. Code (a). Id. The Court s Order provided that its action suspending Respondent was pursuant to Rule XI, 10(c) of the Rules Governing the Bar of the District of Columbia. HC Find The Board determined that the conviction did not represent a crime of moral turpitude per se. See Order dated Sept. 17, The Board therefore referred this matter to a hearing committee to determine whether Respondent s conduct involved moral turpitude on the facts, and, if not, for a recommendation of the appropriate final discipline as the result of Respondent s conviction of a serious crime. Id.; HC Find. 6. The Woldiger and Taub Fraud Scheme 7. Abraham Woldiger and Abraham Taub were principals in Blackstone Realty Management Corporation, a company that was involved in the purchase and management of lowincome housing projects financed by mortgage notes insured by HUD and secured by the projects themselves. Woldiger and Taub, together with others, owned the projects through limited partnerships. Woldiger and Taub also were partners in separate entities they created to provide construction, maintenance and repairs at the projects. These entities are sometimes referred to in the record as identity of interest companies or simply IOIs, because their interests are identical with the interest of the project owners (Woldiger and Taub). For example, the Blackstone project relevant to this matter, Lowe Avenue Terrace Apartments ( Lowe ), was owned by Blackstone Lowe Avenue Associates, L.P. ( Lowe Associates ). Construction, maintenance and repairs were performed at Lowe by Old Midwest Contractors ( Old Midwest ). Both Lowe Associates and Old Midwest were partnerships owned by Woldiger and Taub. Old Midwest thus was an IOI. HC Find. 7. 4

5 8. Under the Housing Assistance Program, HUD provided housing assistance payments to owners of HUD-insured low-income family housing... pursuant to housing assistance payment contracts and regulatory agreements. These agreements created various obligations and restrictions on the project owners relating to the use of project funds, recordkeeping, and provision of access to the projects and their records to HUD and its agents. BX 2 at 18. Under these agreements, Woldiger and Taub could withdraw only surplus cash, as defined in the agreements, from the Blackstone projects. Id. The projects owned by Woldiger and Taub, however, had no surplus cash. HC Find Sometime before 1994 (the indictment charges [i]n or about and between 1990 and 1992 ), Woldiger and Taub devised a scheme by which they could divert to themselves large amounts of money generated by the Blackstone low-income housing projects, even though those projects had no surplus cash. BX 2 at 16. The crux of the scheme was to conceal these diversions of cash by altering the books of the IOIs and creating false invoices so that the diversions would appear as payments from the project owner to the IOI management companies, payments that could be made regardless of the surplus cash position of the owner. BX 5 at 72. The scheme worked as follows: (a) Woldiger and Taub would cause funds generated by the Blackstone projects to be deposited into the IOI contractors bank accounts and thereafter paid to themselves out of the IOI accounts. (b) In order to substantiate or justify the deposit of project funds into the IOI bank accounts, Woldiger and Taub arranged for the preparation of false and fraudulent invoices from the IOIs. BX 2 at 21. These invoices were ostensibly for work done by the IOIs on the Blackstone projects. 5

6 (c) The employees of the IOIs who performed work on the Blackstone projects were directed to omit from work orders the nature of the work performed, the time spent and the cost of materials for work done and to forward the largely blank work orders to the Rego Park office [of Woldiger and Taub] for preparation of invoices. Id. (d) Using the largely blank work orders, a business associate of Woldiger and Taub would create[] false and fraudulent invoices... to submit to the Blackstone projects, and to provide to federal auditors... who were reviewing the operations of the Blackstone projects. BX 2 at 22; HC Find. 9. Respondent s Background and Relevant Conduct 10. After graduation from law school and admission to the bar in 1980, Respondent worked for Alexander Grant & Company for two years and then went to work for the National Corporation for Housing Partnerships ( NCHP ), which is one of the largest owner[s] and managers of subsidized housing in the country. Tr. at In October 1990, he left NCHP and became employed by Woldiger, Taub and Peter Hoffman, three individuals whom Respondent referred to as the Blackstone Realty people. Tr. at 20. Respondent became a shareholder of the Blackstone Management Corporation and a partner in four of the eight Blackstone projects. HC Find In 1996, Respondent was primarily working with Blackstone properties in Harrisburg, Pennsylvania, and Providence, Rhode Island. At that time, Lowe, a Blackstone project located in Chicago, was first the subject of an audit by HUD and then an evaluation by the United States Attorney for the Northern District of Illinois for possible criminal violations. Respondent was asked, in November or December 1996, to review some records relevant to the 6

7 Lowe matter in the Washington, D.C. offices of Peabody & Brown, a law firm with expertise in HUD matters, that Woldiger and Taub had retained as legal counsel in that matter. Peabody & Brown had asked Woldiger and Taub whether they had sent everything to the U.S. [Attorney s] office pursuant to a March 4, 1996, letter from Young B. Kim, an Assistant United States Attorney in Chicago. Tr. at 25. Woldiger and Taub had said that they had, except for several boxes of stuff that they had not sent in. Id. They asked Respondent, in his role as of counsel for the Lowe Avenue Terrace matter, to examine the contents of those boxes before [they] submit them. Tr. at 26; HC Find When Respondent looked through the boxes in the offices of Peabody & Brown, it became clear to him that a number of the documents were fraudulent, and just did not support the amounts that Woldiger and Taub had previously charged HUD. Tr. at 28. Respondent told Woldiger and Taub that he could not submit these documents because [t]hey are fraudulent. Tr. at 29. Woldiger and Taub said [O]kay. We ll pay back the money, just pull out the fraudulent documents. Id. Respondent followed that instruction and pulled the fraudulent documents, which numbered maybe 40 to 50, out of the boxes and gave them to Woldiger and Taub the next time he saw them. Tr. at 29-30, 50. Respondent did not advise Peabody & Brown about the fraudulent invoices. The documents that remained in the boxes were sent to the U.S. Attorney. The removed documents were fraudulent work orders that had been prepared in accordance with the Woldiger and Taub fraud scheme to support fraudulent invoices used to cover diversions of non-surplus cash from the Lowe project in violation of HUD agreements. HC Find Respondent s removal of the fraudulent work orders from the boxes he reviewed in the offices of Peabody & Brown was not specifically alleged in the indictment returned by the 7

8 grand jury in the Eastern District of New York, which was dismissed as to Respondent when he was sentenced on a guilty plea to a superseding misdemeanor information. 2 BX 3. The only offense charged in that superseding information was as follows: On or about and between March 7, 1996 and September 9, 1997, both dates being approximate and inclusive, within the Eastern District of New York, the defendant, DAVID ABRAHAMSON, did knowingly, willfully and with the intent to defeat the purposes of the Department of Housing and Urban Development ( HUD ), receive compensation from HUD. HC Find. 13. (Title 18, United States Code, Sections 1012 and 3551, et seq.) Admissions of Respondent and his Counsel at Plea and Sentencing Hearings 14. Respondent s plea of guilty to the superseding information charge was accepted by District Judge Edward R. Korman, United States District Court for the Eastern District of New York, after a brief hearing held on December 9, During the hearing, the Assistant United States Attorney particularized the misdemeanor charge with the following proffer: What Mr. Abramson will be allocuting to is the fact that the United States Attorney s office in the Northern District of Illinois submitted a letter demanding certain records in connection with an investigation that they were doing. Mr. Abrahamson pulled certain records which would have been responsive to that request, knowing that what he was pulling were work orders which were clearly false. He did that while he was receiving compensation. The source of that compensation was funds from HUD. At the time he pulled the work orders that would have been responsive to the request for the records, he did that with the intent to defraud HUD. BX 4 at 5; HC Find Immediately after that recitation, the following colloquy occurred: THE COURT: Did you understand what [the Assistant United States Attorney] just said to you? THE DEFENDANT: Yes, your Honor. 2 The other four defendants were all convicted. HC Find. 13 n.6. 8

9 THE COURT: What she said they would have to prove if you went to trial. Those are essentially the elements of the offense. THE DEFENDANT: I understand, your Honor. THE COURT: You would have had to have acted, that is pulled those work orders not because of any accident or mistake but specifically with the intent in effect to defraud the Housing and Urban Development Agency. Do you understand that? BX 4 at 6; HC Find. 15. THE DEFENDANT: Yes, I understand, your Honor. 16. The sentencing hearing was held on September 22, During that hearing, Respondent s defense counsel described the conduct that constituted the offense to which Respondent had pled guilty. She referred to the following passage from the letter that the U.S. Attorney s office in Chicago had sent to Woldiger and Taub, to which the documents in question were responsive: [D]espite HUD s repeated requests, [Blackstone Realty Management] has yet to provide full and complete documentation to justify the payments of $177,216 for material cost and $1,420,316 for maintenance expense. The work orders and invoices HUD examined are vague and inadequate to support these disbursements. Under the relevant terms, [Blackstone Realty Management] has a duty to maintain proper documentation and make such documentation available for HUD inspection. RX 1; HC Find Defense counsel then explained her understanding that, in that letter, HUD is complaining... that based on the documentation that they have... the money s been paid. So if you want to justify the money then you ve got to start sending us work orders and invoices. BX 7 at 24. After Peabody & Brown put all the documents together... [Respondent] is asked to review them. Id. at In looking through the documents, Respondent gets a far better... understanding of what s going on, and he takes the position that [Woldiger and 9

10 Taub] can t send these documents because you can t ask for an offset with these documents because they re completely fraudulent. Id. at 25. Counsel went on to explain as follows: [Respondent s] of counsel role makes it virtually impossible for him to call the US [A]ttorney s office without his client s consent, which he doesn t have. The reason he, one, does obstruct the audit, but from that day forward he s on notice there s a problem. Whether he knows it s with his buildings, he certainly knows there s a problem. And it s then that he continues... to accept money from these companies. And therein lies the criminal conduct for which he was prepared to take responsibility. BX 7 at 25 (emphasis added); HC Find The compensation from HUD that the information alleged Respondent received was the compensation he received as an employee of Old Colony Contractors. BX 3; BX 5 at 73. He admitted that compensation was compensation from HUD because the funds used to pay the compensation ultimately came to him from HUD through the Blackstone projects. Id. Respondent received that compensation after he was on notice of the Woldiger and Taub scheme. BX 5 at 73; HC Find Respondent was motivated to remove the fraudulent documents from the set of documents submitted by Woldiger and Taub to the government by at least two considerations. First, he believed that submitting the fraudulent documents to justify payment previously received by Woldiger and Taub would itself constitute an act of fraud. Second, he wanted to impede the United States Attorney s Office and HUD in [their] audit of the Lowe Avenue Project. BX 4 at 18. The latter motivation was why he pled guilty. BX 7 at 16; HC Find During the sentencing proceedings, which culminated in a hearing held a little more than nine months after the plea, a more detailed description of Respondent s criminal intent emerged. In a letter that Respondent s counsel sent to the sentencing judge on July 13, 2000, 10

11 commenting on a probation officer s presentence report (which is not in evidence in this matter), counsel gave the following account of what she identified as the gravamen of [Respondent s] crime (BX 5 at 73): Mr. Abrahamson pleaded guilty because there came a time when, in the process of reviewing certain records, subpoenaed by the civil division of the United States Attorneys office in Chicago, (November of 1996), of a company within which he had no interest, (Lowe Avenue Terrace), he became aware of the fraudulent billing scheme devised by his co-defendants. He immediately attempted to stop the scam, by pulling the fraudulent work orders and did not submit them to the United States Attorney s Office. Mr. Abrahamson did not inform the United States Attorney s Office that the work orders were missing from the records that were being submitted, even though they had been previously paid by HUD. Abrahamson s culpability arises once he was on notice regarding the scam. While Abrahamson began to seek other employment, almost immediately, he continued to receive compensation from Old Colony Contractors, Inc., a company having an identity-of-interest with the owner of New City which received funds from HUD. Abrahamson s deliberate decision not to investigate whether that project, which was also owned and operated by Woldiger and Taub was also submitting work orders for work which was not done, was truly the gravamen of his crime and it was the basis for his guilty plea. Id. at 72-73; HC Find. at The prosecutor took sharp issue with defense counsel s statement of Respondent s offense and countered with her own letter to the sentencing judge. She particularly objected to what she termed an attempt by defense counsel to create the impression that fraudulent work orders were pulled and not submitted... in an attempt to stop the scam. BX 6 at 82. In fact, the prosecutor argued, payment had already been made on these work orders. Id. She went on to contend as follows: If Abrahamson had actually intended to stop this fraudulent scheme, he would have alerted the United States Attorney s Office to the fact that these work orders were clearly fraudulent. Instead, realizing that these work orders were obviously 3 Counsel s reference to records that had been subpoenaed by the civil division is an inaccurate statement. BX 5 at 72. RX 1 is not a subpoena, and the record does not otherwise suggest that the documents in question had been subpoenaed by the government. HC Rpt. at 14 n.8. 11

12 fraudulent, and could lead to the discovery of the fraudulent scheme, Abrahamson pulled the work orders in an attempt to conceal the existence of the scheme. BX 6 at 82-83; HC Rpt. at The foregoing discussion was prompted by the judge s inquiry about the consequence of this on [Respondent s] law license. BX 7 at 12. Defense counsel responded with an elaborate recitation of the circumstances Respondent faced when he removed documents from the records he reviewed in the offices of Peabody & Brown. She explained that the records were put together to justify payments that HUD previously had made to the Blackstone entities. Regarding these payments, the government had basically said that whatever you can t document you re going to owe us, because we have already paid you this money. BX 7 at According to Respondent s defense counsel, Respondent knew as a lawyer that if they sent [the work orders] in, Blackstone would be attempting to justify payments with fraudulent documents. As she further explained: That was always his motivation that once he sent on the false documents; one, knowing they were false; two, they would be sent for the purpose of verifying the claim, which in good conscience, he felt he couldn t verify the claim because he knew from the face of them that they were false. Id. Defense counsel did not contend that Respondent s only motivation was to avoid the submission of false support for previous HUD payments. She instead qualified her statement by adding that isn t to say that he didn t that it didn t have the double purpose of obstructing the HUD investigation, which is [why] he s pled guilty. Id. at 15-16; HC Rpt. at Counsel s argument was based upon RX 1, the government s letter dated March 4, 1996, in which the government had written despite HUD s repeated requests, [Blackstone Realty Management] has yet to provide full and complete documentation to justify the payments of $177,216 for material cost and $1,420,316 for maintenance expense. The work orders and invoices HUD examined are vague and inadequate to support these disbursements. RX 1 (emphasis added). HC Rpt. at n.9. 12

13 Respondent s Testimony at the Disciplinary Hearing 23. During the hearing in this disciplinary matter, however, Respondent did deny that he had the kind of double purpose his counsel had described. He explicitly disavowed any intention to defeat the purposes [of HUD] but that was what I had to plead guilty to, to basically get on with my life. Tr. at 65. Respondent went on to explain as follows: I mean, I was nearly bankrupt. I had to take care of my family, and so you reach a point in time where, you know, they were just making it so we weren t going to be able to live, and you say okay. Did I think I intended to defeat the purposes; no, I do not. Q But you didn t want to contest; is that the understanding, under the circumstances you chose not to contest it? A Exactly right. Tr. at 65; HC Rpt. at Respondent in his testimony also qualified the clear statement in his guilty plea hearing that he knew that [pulling obviously false work orders from the records submitted to the U.S. Attorney] would impede the United States Attorney s Office and HUD in its audit of the Lowe Avenue Project. BX 4 at 18. During redirect examination in this case, however, he testified as follows: Q [A]t some point in the criminal investigation, did you understand that not presenting these invoices served to impede the investigation? A Subsequent to this demand letter [RX 1], yes, and that s when I, my sense was that. Q And in fact, is that what you said in the sentencing? A That is right. It wasn t my intent when I pulled the invoices and in November, but by the time I pled guilty, it was clear that by pulling those invoices in light of the broader criminal investigation, which I wasn t aware of then, that it wasn t helpful to their case. Tr. at 67 (emphasis added); HC Rpt. at

14 25. The Committee found Respondent s testimony that he wasn t aware of the broader criminal investigation in November 1996 and when [he] pulled the invoices to be contradicted by his earlier testimony that in November 1996, the time when his reviewed the records in the offices of Peabody & Brown, he had seen Respondent s Exhibit 1 which is dated March 4, Tr. at 55, 67. That letter, on Department of Justice letterhead stationery, begins with the sentence The United States Department of Housing and Urban Development ( HUD ) has referred the above referenced matter to our office for prosecution. RX 1. Respondent testified that that letter led him in July or August 1996 to advise Woldiger and Taub to get a HUD attorney... because they are involved in a HUD matter. Tr. at 54. The Committee concluded that Respondent undoubtedly knew the nature of the investigation that was underway when he reviewed the Blackstone records in the offices of Peabody & Brown. HC Rpt. at The Committee also concluded that the record compels the conclusion that Respondent, despite his denials in the disciplinary proceeding, believed that removing the documents from the box of records he reviewed would, as he freely acknowledged in his guilty plea hearing, impede the United States Attorney s Office and HUD in its audit of the Lowe Avenue Project. BX 4 at 18. At least one of his purposes was obstructing the HUD investigation. BX 7 at 16; HC Rpt. at 17. Evidence in Mitigation 27. In mitigation, Respondent testified as to his efforts to improve living conditions in the properties with which he worked. He testified regarding several pro bono projects he had initiated to increase police presence in the properties, and his efforts to establish a computer learning center in another property. Some of these projects involved travel at his own expense. 28. Respondent has no prior discipline. 14

15 III. ANALYSIS The Committee found that Respondent s crime did not constitute moral turpitude on its facts, a conclusion with which we agree. The Committee also found no violations of Rules 3.4(a), 8.4(b), 8.4(c) and 8.4(d). We disagree with the Committee s findings with respect to Rules 3.4(a), 8.4(b), and 8.4(d). Like the Committee, we find no violation of Rule 8.4(c). 5 Moral Turpitude. The Court in the landmark case of In re Colson, 412 A. 2d 1160, 1168 (D.C. 1979) (en banc), defined moral turpitude for disciplinary purposes. A crime is one of moral turpitude, the Court held, when the act denounced by the statute offends the generally accepted moral code of mankind. Id. The Court went on to describe such a crime as follows: An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Id. (quoting 2 Bouv. Law Dictionary 2247 (Rawles 3d Rev.)). The Court also quoted from Black s Law Dictionary, which defines moral turpitude as contrary to justice, honesty, modesty, or good morals. Black s Law Dictionary 1160 (4th ed. 1951). 6 Very recently, the Court in In re Sims, 844 A.2d 253, 365 (D.C. 2004), set out guidelines for analysis of whether misdemeanor convictions reflect crimes of moral turpitude on their facts. The Court stated: To rise to the level of moral turpitude, an attorney s conduct must be an act of baseness, vileness or depravity, Tidwell, 831 A.2d [953], 957 [D.C. 2003], or be the type that manifests a revulsion of society toward conduct deeply offending 5 We note that while we are bound by the Hearing Committee's findings of fact if supported by substantial evidence in the record, but we are not bound by the Committee's conclusions of law, such as whether particular conduct violates the Rules of Professional Conduct. 6 Under these definitions, the Court held in Colson that the crime of obstruction of justice in violation of 18 U.S.C a crime that has as an essential element that the obstruction be done corruptly, or by threats of force, or by any threatening letter of communication is one that inherently involves moral turpitude. Colson, 412 A.2d at

16 the general moral sense of right and wrong. McBride II, supra, 602 A.2d [626], [D.C. 1992]..... In addition, the actions of the attorney must be motivated by personal gain or manifest intentional dishonesty for the purpose of personal gain, Tucker II, 766 A.2d [510], 512 [(D.C (per curiam)], rather than be simply misguided actions, McBride III, 642 A.2d at Like the Committee, we find that Respondent s contentions at the disciplinary hearing constitute an impermissible effort on his part to re-try his criminal case before The Board. See Colson, 412 A.2d at We therefore find, based upon his guilty plea and admissions made by Respondent and his counsel during the criminal proceedings, that Respondent had an intent to defeat the purposes of HUD when he removed documents from those he reviewed at the offices of Peabody & Brown and that the specific HUD purpose he intended to defeat was the agency s completion of a full investigation of the conduct of Woldiger and Taub. The misdemeanor offense to which Respondent pled guilty does not fit the description of moral turpitude under Colson and Sims. Respondent removed documents that he determined were fraudulently prepared by his employers from a set of documents that he knew would be provided to the government as documentation to justify or invoices that would support payments previously made by HUD. Tr. at 58. He pled guilty to a misdemeanor one element of which is an intent to defeat the purposes of HUD. Tr. at 63. In the course of the guilty plea hearing, he and his defense counsel conceded that at the time of this removal action, at least one of his objectives was obstructing the HUD investigation. BX 7 at 16. Although he decided to terminate his employment, he continued receiving compensation, provided indirectly by HUD, from his employers until he found another job. 16

17 Respondent s conduct does not, however, offend the generally accepted moral code of mankind. Colson, 412 A.2d at His conduct did not involve corruption or threats. He did not commit the federal crime of obstruction of justice. Neither his recognition that removing the fraudulent documents would also mean that evidence of his employers fraud would not at that time be submitted to the government nor his continuation in their employ (which was the fact that was subsequently deemed to bring him under the prohibition of 18 U.S.C. 1012), renders his conduct base, vile, contrary to justice or dishonest. Similarly, there was no personal motivation to profit in the manner contemplated by the Court s decisions. Rule 3.4(a). Rule 3.4(a) imposes professional obligations regarding the handling of evidence. As relevant here, Rule 3.4(a) forbids lawyers to obstruct another party s access to evidence or... conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding. Respondent knew that the documents he removed from the set of documents submitted to the government, if not requested in the government s letter of March 4, 1996, were nevertheless relevant to the HUD audit and the Justice Department s evaluation whether prosecution is appropriate in this case. RX 1. The question is whether his handling of those removed documents failed to comply with the obligations imposed by Rule 3.4. The Committee found that Respondent knew at the time he removed the documents that there was a criminal investigation and that there was an ongoing HUD audit. Respondent did not keep the fraudulent documents in his own possession for safekeeping nor did he turn them over to Peabody & Brown for safekeeping. He did not even disclose the existence of the documents to Peabody & Brown. Instead, he gave them back to Woldiger and Taub after telling them he 17

18 knew they were fraudulent. Respondent admitted that he knew that removing the documents would impede the United States Attorney s Office and HUD in its audit of the Lowe Avenue Project. BX 4 at 18. The Committee found that a violation of Rule 3.4 was not established because it was not determined whether Woldiger and Taub did anything with the returned documents to obstruct anyone s access to them. There was no evidence on this point, but we conclude that Respondent s admission that he knew removing the documents would impede the pending investigations establishes a violation of this Rule. This admission is corroborated by Respondent returning the fraudulent documents to the very persons who had caused them to be prepared. We therefore conclude that Respondent violated Rule 3.4(a). Rule 8.4(b). Rule 8.4(b) provides that [i]t is professional misconduct for a lawyer to... commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects. Respondent was convicted of a crime that arose out of his handling of fraudulent documents that had been used to unlawfully obtain money from HUD. He acknowledged that, in returning the documents, he intended to impede a government investigation. In light of the important roles of attorneys in upholding the integrity of our legal system as expressed in part by Rule 3.4(a) it must be concluded that commission of a crime that is intended to impede an investigation reflects adversely on a lawyer s fitness as a lawyer. Rule 8.4(c). Rule 8.4(c) makes it professional misconduct for a lawyer to engage in any conduct that involves dishonesty, fraud, deceit, or misrepresentation. We agree with the Committee that the evidence in this case does not establish that Respondent engaged in conduct 18

19 that can fairly be described as dishonest, fraudulent or deceitful. Respondent s conduct therefore did not violate Rule 8.4(c). Rule 8.4(d). Respondent is charged with violating Rule 8.4(d) by engag[ing] in conduct that seriously interfere[d] with the administration of justice. The elements of this violation were set out by the Court in In re Hopkins, 677 A.2d 55 (D.C. 1996). First, the attorney must engage in improper conduct. Second, conduct must bear directly upon the judicial process (i.e., the administration of justice ) with respect to an identifiable case or tribunal. Id. at 61. Third, the attorney s conduct must taint the judicial process in more than a de minimis way; that is, at least potentially impact upon the process to a serious and adverse degree. Id. The comments to Rule 8.4(d) state that it includes conduct formerly within DR 1-102(A)(5) of the Code of Professional Responsibility, which prohibited acts prejudicial to the administration of justice. The comment incorporates the case law on DR 1-102(A)(5) and notes that the rule may extend beyond the most familiar violations, which involve failure to cooperate with Bar Counsel or violation of a Court order. Cmt. 2. The comments state: While the above categories failure to cooperate with Bar Counsel and failure to obey [C]ourt orders encompass the major forms of misconduct proscribed by paragraph (d), that provision is to be interpreted flexibly and includes any improper behavior of an analogous nature. Cmt. 5. After setting out the now familiar three-prong test for DR 1-102(A)(5) (now Rule 8.4(d)), the Court found a violation based upon the fact that respondent s failure to take action to protect the assets of the estate from her client s improper action prejudiced, i.e., destroyed, the Probate Division s ability to administer the assets. Three years later, in In re Mason, 736 A.2d 1019 (D.C. 1999), the Court found a violation of DR-102(A)(5) based upon the respondent having lied to the Federal Home Loan Bank Board ( FHLBB ) under oath during its investigation of his client s relationship to a savings and loan 19

20 association. The Court found a violation notwithstanding that the conduct did not involve a court proceeding. As to the scope and purpose of the rule, the Court stated: Our case law supports a somewhat expansive view of DR 1-102(A)(5). As we stated in In re Alexander, 496 A.2d 244 (D.C. 1985), DR 1-102(A)(5) is a general rule that is purposely broad to encompass derelictions of attorney conduct considered reprehensible to the practice of law. We have also endorsed the notion that conduct that is prejudicial to the administration of justice can be equated to conduct unbecoming a member of the bar. This broad reading is supported by the aim of DR set forth in the Code of Professional Responsibility, which is to uphold the integrity and competence of the legal profession. A DR 1-102(A)(5) violation does not require that a specific court procedure be violated, nor does it require that a judicial body make an incorrect decision. Such a violation also does not have to be affiliated specifically with the judicial decision-making process; the conduct simply must bear upon the administration of justice. Id. at The Court in Mason concluded that respondent s false statements in the FHLBB investigation satisfied all three of the Hopkins criteria. As to the first requirement, the false statements were improper. As to the second, the Court found that lying in the FHLBB investigation had a direct effect on the judicial process... with respect to an identifiable case or tribunal. Id. at 1023 (citing Hopkins, 677 A.2d at 61). The Court noted the FHLBB was a federal regulatory agency, which conducted investigations, granted or denied stock purchase requests, received sworn affidavits, examined financial records of institutions, took depositions, issued cease and desist orders and filed civil actions. The Court cited previous cases in which DR 1-102(A)(5) violations had been found in situations not involving a formal court setting. Specifically, the Court cited In re Hutchinson, 534 A.2d 919 (D.C. 1987) (en banc) (false testimony under oath before Securities and Exchange Commission), and In re Keiler, 380 A.2d 119 (D.C. 1997) (per curiam) (selecting an interested person to be arbitrator in a private arbitration matter). 20

21 We conclude that Respondent s conduct violated Rule 8.4(d). His conduct, which constituted a crime, was clearly improper. The second requirement as defined by Hopkins, is that the conduct itself must bear directly upon the judicial process (i.e., the administration of justice ) with respect to an identifiable case or tribunal. Hopkins, 677 A.2d at 61. If lying to the FHLBB or SEC can violate Rule 8.4(d), then actions which are intended to impede government investigations logically would also constitute a violation. Respondent s actions had the potential to adversely impact a U.S. Attorney s Office investigation and a HUD audit. IV. SANCTION The Committee recommended a six-month suspension for Respondent s conviction of a serious crime. While we disagree with the Committee s conclusion that there were no disciplinary violations, we concur with the proposed sanction. The Committee looked to sanctions for Rule 8.4(d) violations, observing that the sanctions range from suspension for one month to suspension for six months, citing, e.g., In re Steinberg, 761 A.2d 279 (D.C. 2000) (per curiam); In re Mattingly, 723 A.2d 1219 (D.C. 1999) (per curiam); In re Lilly, 699 A.2d 1135 (D.C. 1997) (per curiam); In re Smith, 649 A.2d 299 (D.C. 1994) (per curiam); In re Lieber, 442 A.2d 153 (D.C. 1982); In re Whitlock, 441 A.2d 989 (D.C. 1982) (per curiam); In re Russell, 424 A.2d 1087 (D.C. 1980) (per curiam). We put minimal weight on the evidence in mitigation but do note that Respondent had no prior discipline. We conclude that this sanction should be sufficient to satisfy the public interest. 21

22 We also agree that the suspension should run nunc pro tunc from Respondent s filing of the D.C. Bar R. XI, 14(g) affidavit on August 28, See In re Ventura, 799 A.2d 1200 (D.C. 2002) (per curiam); In re Bowser, 771 A.2d (D.C. 2001) (per curiam); In re Hoare, 727 A. 2d 316 (D.C. 1999) (per curiam). V. CONCLUSION Having found that Bar Counsel has proven by clear and convincing evidence that Respondent violated Rules 3.4(a), 8.4(b), and 8.4(d), and committed a serious crime, the Board recommends that Respondent be suspended for six (6) months, nunc pro tunc, to August 28, 2001, the date on which Respondent filed an affidavit in compliance with D.C. Bar R. XI, 14(g). BOARD ON PROFESSIONAL RESPONSIBILITY By: Roger A. Klein Dated: May 20, 2004 All members of the Board concur in this Report and Recommendation except Mr. Wolfson, who has filed a separate concurring and dissenting statement joined by Ms. Holleran Rivera and Ms. Williams. 7 Respondent filed his 14(g) affidavit with the Board on August 28, D.C. Bar R. XI, 14(g) requires that he file an affidavit both with the Court and the Board. The Board record does not reflect whether Respondent filed an affidavit with the Court. Therefore, the Board recommends that the Court suspend Respondent nunc pro tunc to August 28, 2001, the date on which he filed the affidavit with the Board, provided that Respondent file a copy of his 14(g) affidavit with the Court within 10 days of the issuance of this Report and Recommendation. See In re Peery, Bar Docket No at (BPR Jan. 30, 2004) (pending Court review); In re Meaden, Bar Docket No at (BPR July 23, 2003) (pending Court review); In re Patti, Bar Docket No at 2 (BPR Aug. 9, 2002), aff d, 806 A.2d 1235 (D.C. 2002) (per curiam); In re Saul, Bar Docket No at 6 n.1 (BPR July 31, 1995), aff d, 671 A.2d 461 (D.C. 1996) (per curiam). 22

23 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) DAVID E. ABRAHAMSON, ) Bar Docket No ) Respondent. ) CONCURRING AND DISSENTING STATEMENT OF PAUL R.Q. WOLFSON I agree with the Board that Respondent violated Rules 3.4(a) and 8.4(b), based on his conviction for a violation of 18 U.S.C I also agree with the sanction recommended by the Board, six months suspension, based on those violations alone. The more difficult question for me is whether Respondent s conduct constituted conduct that seriously interferes with the administration of justice, in violation of Rule 8.4(d). The Court has stated that, to constitute conduct in violation of Rule 8.4(d), the attorney s misconduct must be shown to have had a direct effect on the judicial process... with respect to an identifiable case or tribunal. In re Hopkins, 677 A.2d 55, 61 (D.C. 1996). I do not see that predicate for the violation in this case. It is true that the Court has adopted a somewhat expansive view of Rule 8.4(d) and its predecessor, DR 1-102(A)(5). In re Mason, 736 A.2d 1019, (D.C. 1999). Mason is distinguishable, however, because that case involved a proceeding before the Federal Home Loan Bank Board, which had at least quasi-judicial, or adjudicative, power. The Court of Appeals has not thus far applied either the present rule or its predecessor where the attorney had not knowingly and intentionally impeded a judicial or quasi-judicial function, with respect to an identifiable case or tribunal. See id. at 1023, Respondent impeded an investigation by the United States Attorney s Office and, arguably, an audit by the Department of Housing and Urban Development ( HUD ). So far as

24 the record discloses, however, neither of these was a judicial or quasi-judicial proceeding. Certainly the United States Attorney s Office does not have judicial or quasi-judicial power. As for HUD, the record does not disclose that HUD had any similar power; it does not suggest, for example, that HUD would have been empowered to impose some penalty on Respondent s clients without resorting to the courts, based on the result of the audit. Nor is there any suggestion that Respondent was ever aware that a proceeding actually in the courts against his client was pending or, at a minimum, imminently impending. Thus, Respondent was not aware of the existence of any pending judicial proceeding against his client. I would not extend Rule 8.4(d) to situations where the attorney is not actually aware of a pending matter before a judicial or quasi-judicial tribunal, even if the attorney acts to impede an investigation or an audit that could eventually result in such a judicial or quasi-judicial proceeding. We should be careful not to adopt an overly expansive construction of Rule 8.4(d) beyond the reach of judicial and quasi-judicial tribunals. In particular, I am concerned that, if Rule 8.4(d) is construed more broadly to cover all manner of government investigations, it could be used against attorneys who in good faith advise their client that they need not provide active assistance to investigations, which generally is permissible under the law. The line between adjudicative and non-adjudicative proceedings is a sensible one and should be maintained. BOARD OF PROFESSIONAL RESPONSIBILITY By: Paul R.Q. Wolfson Dated: May 20, 2004 Ms. Holleran Rivera and Ms. Williams join in this concurring and dissenting statement. 2