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: : : LORENZO C. FITZGERALD, JR., : : Board Docket No. 10-BD-057 Respondent. : Bar Docket No D127 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY Respondent was charged in a two-count Specification of Charges with violating five Rules of Professional Conduct in connection with (a) his failure to deliver a client s file to the client s successor counsel, and (b) his conduct in responding to Bar Counsel s investigation of that matter. Respondent stipulated to most of the facts and admitted to violating (i) Rules 1.16(b) and 8.4(d) in not timely delivering the client s file to successor counsel, and (ii) Rules 8.1(b) and 8.4(d) by not responding to Bar Counsel in a timely manner, requiring Bar Counsel to file a motion with the Board to compel Respondent to respond to Bar Counsel s inquiries. Respondent disputed the charges that he violated Rules 8.1(a) and 8.4(c) by falsely claiming that he (a) had delivered the file timely to successor counsel, (b) had lost the receipt for the delivery of the file, and (c) had not received Bar Counsel s requests for information relating to the complaint. The Hearing Committee concluded unanimously that Respondent violated Rules 1.16(b) and 8.4(d), in failing to deliver his client s file promptly, Rules 8.1(b), and 8.4(d) in not responding to Bar Counsel s inquiry, and Rules 8.1(a) and 8.4(c) by falsely asserting that he had delivered the file to successor counsel in October 2008, and alleging that the delivery receipt had been destroyed. The Hearing Committee split on whether Respondent violated Rules 8.1(a) and

2 8.4(c) in falsely telling Bar Counsel that he had not received Bar Counsel s March and April 2009 requests for information due to a problem with the delivery of his mail at his office. The majority concluded that Respondent s explanation concerning these matters was plausible and that Bar Counsel had not demonstrated by clear and convincing evidence that Respondent had been dishonest. The dissent found that Respondent s explanation was not credible, that he had received Bar Counsel s letters but, at best, failed to pick them up, and that he had been dishonest in telling Bar Counsel that he had not received Bar Counsel s requests as a result of a routing problem at his office. 1 The Hearing Committee majority recommended that Respondent be suspended for a period of 90 days, followed by six months of supervised probation. The dissent recommended a six-month suspension with a fitness requirement. For the reasons set forth below, we conclude that, notwithstanding the deference to which hearing committee findings are entitled, the majority s findings that Respondent s statements concerning his receipt of Bar Counsel s requests for information were not dishonest are not supported by substantial evidence on the record as a whole. We find that the record supports the dissent s conclusions on this issue. We also agree with much of the dissent s sanction analysis, but believe that its proposed sanction is too lenient and recommend that the Court of Appeals ( Court ) suspend Respondent for one year with a fitness requirement. 1 The Specification of Charges alleged that Respondent was dishonest when he told Bar Counsel that he had not received Bar Counsel s June 3, 8, and 26, 2009 correspondence seeking copies of the police report concerning the drive-by shooting of his wife. See Specification of Charges at 7-8. Neither the majority nor the dissent addressed this allegation. Bar Counsel seeks additional findings by the Board on these issues and an additional violation of Rules 8.1(a) and 8.4(c) based on those findings. Bar Counsel s Brief in Support of its Exceptions to the Report and Recommendation Hearing Committee at

3 I. FINDINGS OF FACT Many of the facts are straightforward and were admitted by Respondent in the stipulation of facts and rules violations signed by both parties (the joint stipulation ). The Hearing Committee s Findings of Fact with respect to the events giving rise to the complaint are supported by the joint stipulation and substantial record evidence. 2 We adopt those findings and summarize them below. We also adopt, as supplemented in this Report, 3 the Hearing Committee s findings concerning Respondent s dealings with Bar Counsel, except for its findings concerning whether Respondent received Bar Counsel s various letters requesting information. We make additional findings of fact based on clear and convincing evidence pursuant to Board Rule 13.7, with respect to Respondent s interactions with Bar Counsel. A. Procedural History On July 6, 2010, Bar Counsel filed its Specification of Charges charging Respondent with not delivering the file of his former client, Ramsey Brown, to successor counsel in a timely manner and with lying to Bar Counsel by stating that he (i) delivered the file in October, 2008, when he actually delivered it in March, 2009, (ii) had lost the delivery receipt as a result of the police investigation of the shooting, and (iii) had not received Bar Counsel s correspondence due to problems associated with receiving mail at his office. Respondent filed his Answer on August 27, 2010, denying all charges. Subsequently, on January 20, 2011, Bar Counsel and Respondent filed a Petition for Negotiated Discipline in which Respondent stipulated that he had violated all of the Rules 2 Bar Counsel s Exhibits will be cited as BX ; the transcript as Tr. ; the Hearing Committee Findings of Fact as FF ; the Hearing Committee Report as H.C. Rpt. at ; and the dissenting opinion as Dissent at. 3 Supplemental Findings are indicated by references to the transcript or exhibits. 3

4 alleged in the Specification of Charges. BX 30 at 4, 6-7. In his Affidavit supporting the Petition for Negotiated Disposition, Respondent acknowledged that any sworn statement made by me in the petition for negotiated discipline, [or] the accompanying affidavit... may be used for purposes of impeachment at any subsequent hearing on the merits. BX 31 at 3, 11. The proposed sanction was a six-month suspension with all but 60 days stayed in favor of one year of supervised probation. BX 30. The Ad Hoc Hearing Committee that conducted the limited hearing on the negotiated disposition approved the proposal. In re Fitzgerald, Bar Docket No D127 (H.C. June 15, 2011). On review, the Court remanded the matter to the Board to determine whether the sanction was consistent with Court decisions concerning dishonesty and the failure to comply with Bar Counsel investigations. The Court directed the Board to determine the extent of respondent s dishonesty and non-compliance during the initial investigation of the disciplinary complaint. See Order, In re Fitzgerald, No. 11-BG-717 (D.C. June 29, 2011) (per curiam). On July 29, 2011, the Board issued a Report and Recommendation detailing the deficiencies in the negotiated disposition record. The Board recommended that the Court reject the negotiated disposition and that either the parties file an Amended Petition for Negotiated Disposition and Affidavit addressing the questions raised by the Board or that Bar Counsel proceed to a contested hearing on the Specification of Charges. See In re Fitzgerald, Board Docket No. 11-ND-001 (BPR July 29, 2011). On September 16, 2011, the Court issued an order rejecting the Petition for Negotiated Discipline for reasons stated in the Board s report and without prejudice to Bar Counsel filing an amended petition and supporting affidavit. See Order, In re Fitzgerald, No. 11-BG-717 (D.C. Sept. 16, 2011). 4

5 On November 21, 2011, Bar Counsel and Respondent executed an Amended Petition for Negotiated Disposition in which Respondent stipulated to the same rule violations and which proposed the same sanction. BX 34. The Amended Petition was supported by an Amended Affidavit of Negotiated Disposition containing the same admissions as in Respondent s earlier Affidavit, but also including facts in mitigation. BX 35. Respondent asserted that his wife was the victim of a drive-by shooting at their home in October 2008, shortly before the date Respondent claims he had promised to deliver the file to Mr. Brown s successor counsel per her oral request, and shortly before she requested his file by letter. Id. at 3-4; BX 16 at 3. He claimed that his wife s prolonged hospitalization and recovery resulted in his failure to deliver the file to successor counsel. Id. at 5-6. Respondent s supporting Affidavit again acknowledged that the statements made in connection with the negotiated disposition could be used against him for impeachment purposes. Id. at 3. Bar Counsel urged acceptance of the negotiated disposition, arguing that the circumstances surrounding the shooting of Respondent s wife and Respondent s subsequent cooperation with Bar Counsel were mitigating factors that supported the proposed sanction. BX 34 at 12. On February 9, 2012, the parties jointly withdrew the Amended Petition for Negotiated Disposition. The hearing on Bar Counsel s Specification of Charges began on May 23, B. Facts Giving Rise to the Complaint Respondent represented Mr. Brown in a criminal trial, which resulted in Mr. Brown s conviction. Mr. Brown was sentenced to five years of incarceration. Respondent filed a timely notice of appeal. H.C. Rpt. at 9, FF 1. 4 On June 12, 2008, the Court appointed Joanne Vasco, Esq. to serve as Mr. Brown s lawyer on appeal. Id., FF 2. Ms. Vasco requested via letter that 4 No ethical questions have been raised concerning the manner in which Respondent handled Mr. Brown s defense. 5

6 Respondent deliver Mr. Brown s file to her on November 10, 2008 and again on November 29, On December 16, 2008, Ms. Vasco filed with the Court a Motion to Compel Production of the file. Respondent did not respond to any of these requests. Id. at 9-10, FF 3. The Court issued the requested Order on January 13, 2009 and, when Respondent did not produce the file, issued an Order to Show Cause why Respondent should not be held in contempt for failing to produce the file. Id. at 10, FF 5. The show cause proceeding was held in September 2009 before Superior Court Judge Canan. BX Since Respondent had delivered the file to Ms. Vasco on or about March 27, 2009, the Court discharged the show cause order. H.C. Rpt. at 14, FF As a result of the delays in delivering the materials, Ms. Vasco was required to obtain several extensions of time to file her brief. Id. at 10, FF 4; Id. at 12, FF 12. C. Dealings With Bar Counsel On or about February 23, 2009, Mr. Brown wrote to Respondent requesting his case file. Mr. Brown copied Bar Counsel with his letter. Id. at 11, FF 7. On March 2, 2009, the Deputy Bar Counsel called Respondent. She testified that she left a message, and surmise[d] that her call was about the complaint filed by Mr. Ramsey Brown. Tr. 119; BX 36. On March 25, 2009, the Deputy Bar Counsel wrote to Respondent requesting his response to Mr. Brown s letter. H.C. Rpt. at 11, FF 8. She called Respondent again on March 27 to advise him that his response was due. BX 37; Tr On April 3, 2009, Respondent came to Bar Counsel s office and requested another copy of the complaint. At the time, he was reminded that his response to Bar Counsel s request was due on April 6, H.C. Rpt. at 11, FF At that hearing, Respondent testified that he did not respond to the Court s January 13, 2009 order requiring him to produce the file because he did not receive it. BX 27 at 4. 6 In doing so, Judge Canan noted that Respondent had this reputation for not being where you need to be or receiving documents or even receiving phone calls. And it s just been a historical issue with you for a long time.... BX 27 at 5. 6

7 Respondent did not respond on April 6, nor did he respond to Bar Counsel s second request for a response sent on April 9, That letter was sent via regular and certified mail. Id. at 11-12, FF 11. Bar Counsel received a delivery receipt on April 17, BX 5. On April 22, 2009, Bar Counsel filed a Motion to Compel with the Board. H.C. Rpt. at 12, FF 13. That motion was subsequently dismissed by Bar Counsel after Respondent produced his response on May 5, Id., FF 14; Id. at 13, FF 17. In his response, Respondent included a letter to Bar Counsel dated April 2, 2009, in which he stated that he had delivered Mr. Brown s file to Ms. Vasco in October 2008, and that he was unable to produce the delivery receipt because the receipt had been damaged or lost when the police investigated the drive-by shooting of his wife in October Id. at 12, FF 14. Respondent s April 2 letter also stated that he had again sent the file to appellate counsel, and included a letter dated March 27, 2009 to Ms. Vasco delivering Mr. Brown s file. BX 6. He stated that he had not received Bar Counsel s requests for information because his office mail had not been routed to him properly. Id.; H.C. Rpt. at 13, FF 15. Both Bar Counsel letters had been sent to Respondent s office address, 601 Pennsylvania Ave, Suite 900, Washington, D.C , which was his most recent address listed with the D.C. Bar. BX 2, 4; see H.C. Rpt. at 8, FF 11. Neither letter was returned by the post office. H.C. Rpt. at 11, FF 8; Id. at 11-12, FF 11. On May 21, 2009, Bar Counsel wrote to Respondent and asked for a copy of the police report concerning his wife s shooting. Id. at 13, FF 18. Respondent did not respond to that request or to Bar Counsel s second and third requests. Id. at 13-14, FF The second request was sent by fax and by first class mail; the third was sent by certified mail and by regular first class mail to Respondent s home. Id. at 14, FF None of those letters were 7

8 returned by the post office. Id. at 13-14, FF Bar Counsel received a signed receipt that the certified letter had been received at Respondent s home. Id. at 14, FF 20. Bar Counsel subsequently obtained the police report from the Prince George s police department by subpoena. The report verified Respondent s claim that his wife was the victim of a drive-by shooting. H.C. Rpt. at 14, FF 21. had violated: On July 6, 2010, Bar Counsel filed a Specification of Charges alleging that Respondent Rule 1.16(d) in not delivering Mr. Brown s file to successor counsel in a timely manner; Rule 8.4(d) because his delay in delivering the file required the filing of a motion to compel and a contempt proceeding as well as requiring successor counsel to seek several extensions of time to file her brief; Rule 8.1(a) in falsely telling Bar Counsel that he had delivered the file in October 2008 and lost the delivery receipt and that he did not receive communications from Bar Counsel due to mail routing problems at his office; Rule 8.1(b) in failing to respond to Bar Counsel s requests for information; Rule 8.4(c) in falsely telling Bar Counsel that he had delivered the file in October 2008 and lost the delivery receipt and that he did not receive communications from Bar Counsel due to mail routing problems at his office; and Rule 8.4(d) in failing to respond to Bar Counsel s communications, thus requiring Bar Counsel to file a motion to compel with the Board to obtain necessary information. D. Respondent s Receipt of Mail 7 The key factual issue in dispute is whether Respondent was dishonest when he told Bar Counsel in May 2009 that he had not received Bar Counsel s March and April 2009 letters and 7 The Hearing Committee did not make findings with respect to this issue in its Findings of Fact. Rather, the majority set forth its findings in its Conclusions of Law. H.C. Rpt. at The dissent set forth his alternate findings of fact in his dissenting statement. Dissent at

9 later that he had not received Bar Counsel s May and June 2009 letters or Motion to Compel. Respondent maintained that he had not received the material due to problems with the receipt of his mail. He raised the issue of problems with his mail delivery in his testimony at the hearing. Tr Respondent received his mail at his virtual office in the south building of a two building complex at 601 Pennsylvania Ave, N.W., Suite 900, Washington, D.C The office was managed by Regus Management Group and was used by Respondent essentially as a mail drop. Tr The office management accepted mail for its tenants, including signing for certified mail, and placed the mail in the tenants folders. The tenants would pick up the mail at their discretion, although the management company would notify tenants if mail was not picked up for a month or accumulated in their folder. Tr The Regus Management Group office manager, Ms. Venita Quarles, testified that the management company had advised Respondent at least once that his folder was full. Tr Ms. Quarles also testified that her staff never advised her that there was a problem with the handling of Respondent s mail and that she not aware of any of Respondent s mail being misfiled. Tr She testified that he contacted her, she believed, some time during the period from March and June 2009 to voice his concern that he was having a problem with his mail or not being notified that he had certain mail. Specifically, he was concerned that he was not made aware of [mail] that had been delivered from the courts. Tr According to Ms. Quarles, Respondent s mail was in his folder ; it just wasn t picked up. Tr Respondent also claimed to have not received the Court of Appeals Order requiring him to deliver the file to Ms. Vasco. See BX 27 at 4. Bar Counsel has not charged him with a rule violation with respect to that claim. 9

10 In his May 5, 2009 response to Bar Counsel s initial request for information, Respondent stated that he had not received Bar Counsel s March 25 letter of inquiry or its April 22 Motion to Compel due to a foul up in the mail delivery at my office. Steps have been taken to insure that a reoccurrence will not take place. H.C. Rept. at 13, FF 16 (quoting joint stipulation, 18). During the hearing, he testified that his statement in the May 5 letter was accurate. Tr. 21. After receiving Respondent s May 5 letter, Bar Counsel mailed Respondent three requests for copies of the police report on May 21, June 3, and June 26, respectively. BX Afterward, Respondent met with Bar Counsel and stated that he had not received any of the requests for the police report, raising the possibility that they were not delivered due to his problems receiving mail at his office mailbox. Tr Respondent denied having received all three of Bar Counsel s requests even though Bar Counsel s June 26 letter had been sent certified mail to his home address on file with the D.C. Bar, and Bar Counsel had received a signed delivery receipt. BX 10. In response to Respondent s testimony that he had never received the March/April mail, Bar Counsel introduced for impeachment purposes, as provided under Board Rule 17.10, the Affidavits Respondent executed in the failed negotiated disposition proceedings. Tr Respondent acknowledged that his testimony was inconsistent with his Affidavits, but maintained that he agreed to the statements in the Affidavits to obtain an expedited resolution of the matter and a lesser sanction. Tr He continued to maintain that he had not received Bar Counsel s letters. Tr At the hearing and in his Proposed Findings of Fact and Conclusions of Law, Respondent objected to Bar Counsel s introduction of a portion of the transcript of the limited hearing in the negotiated disposition that addressed his Affidavit. He claimed it was cumulative and prejudicial. Tr ; Respondent s Proposed Findings of Fact and Conclusions of Law at 5. Bar Counsel maintained that the transcript was necessary to establish that the Affidavit was not coerced and that Respondent was warned that it could be used to impeach him at any adjudicatory hearing. Tr Footnote continued on next page 10

11 The Hearing Committee majority accepted Respondent s explanation, finding that he cannot be found to have lied about not actually receiving the mail. H.C. Rpt. at It concluded that his credibility was not impeached by his statements in the negotiated discipline Affidavits as his explanation for the inconsistent statements was within the bounds of reason. Id. at 18. Thus, it held that it would not rely on this statement to conclude that Respondent falsely made a claim about not receiving mail before May 5, Id. at The dissenting member found Respondent s claims unconvincing. He credited the testimony of Ms. Quarles and concluded that Respondent had received the mail, had not picked it up, and had attempted to shift the blame for not answering Bar Counsel s correspondence from Respondent to the virtual office. Dissent at 4-6. The Board s role with respect to factual matters is limited. We are required to accept a hearing committee s findings of fact, including its credibility determinations, if they are supported by substantial evidence in the record, viewed as a whole. In re Sabo, 49 A.3d 1219, 1224 (D.C. 2012) (quoting In re Micheel, 610 A.2d 231, 234 (D.C. 1992)); Board Rule As the Court noted, such deference is appropriate because the hearing committee has the Footnote continued from previous page We agree that the transcript was cumulative, but the Hearing Committee s decision to admit it was harmless. However, we find that the introduction of the transcript for the purposes advocated by Bar Counsel exceeds the permissible use of negotiated discipline affidavits under Board Rule That rule limits the use of affidavits executed in negotiated discipline proceedings to impeachment and makes no provision for the introduction of any portion of the limited hearing transcript. Moreover, Respondent never claimed that the Affidavits were coerced or not executed willingly or that they could not be used for impeachment. Thus, the transcript was not necessary to impeach any claim that the Affidavits were coerced or were anything but voluntarily executed. 10 The Hearing Committee also rejected Bar Counsel s assertion that because Respondent had prepared a letter to Bar Counsel on April 2, 2008 defending his conduct, Respondent had to have received its letter. The majority noted that the Deputy Bar Counsel had left a voice mail message with Respondent at the end of March and thus his letter to Bar Counsel could have been based on that message. It found that there was no basis for concluding that Respondent lied about not having received Bar Counsel s letter. Id. at

12 opportunity to observe the witnesses and assess their demeanor. Id. (quoting In re Ray, 675 A.2d 1381, 1387 (D.C. 1996)); see also In re Temple, 629 A.2d 1203, (D.C. 1993) ( The fact finder who hears the evidence and sees the witnesses is in a better position to make [credibility] determinations, having the benefit of those critical first-hand observations of the witness demeanor or manner of testifying which are so important to assessing credibility. ). That deference is due even where, as here, the hearing committee is not unanimous in its findings. E.g., Temple, 629 A.2d at At the same time, a hearing committee s credibility determinations are not accorded the usual deference where they rest on a mistaken understanding of the evidence, or are not based on an assessment of the respondent s demeanor in testifying and responses to questions. In re Anderson, 778 A.2d 330, (D.C. 2001). After a careful review of the record as a whole, we find that the majority s finding that Respondent did not lie when he said he did not receive Bar Counsel s letters is not supported by substantial evidence. 11 The evidence is undisputed that Bar Counsel mailed the March and April letters to Respondent at his office, that the office address was correct, 12 and that those letters were not returned by the post office. Indeed, the April 9 letter was sent by certified mail, and Bar Counsel received an acknowledgement of receipt. Similarly, the May 21 and June 3 mail was not returned. The normal presumption is that in these circumstances, the letters were received at Respondent s office. See Savage-Bey v. La Petite Academy, 50 A.3d 1055, 1060 (D.C. 2012); So v th Street Assocs., 834 A.2d 910, 914 (D.C. 2003). That presumption is 11 The majority report is not entirely clear whether the majority found that Respondent never received the mail at his office or whether it found that he never actually had it in hand. Compare H.C. Rpt. at 16-17, with id. at 20. As explained below, we conclude that the Committee found that Respondent did not actually receive the mail, rather than that the mail was not delivered to his office and placed in his mail folder. 12 The letters failed to include the N.W. in the address; however, the zip code used, 20004, is exclusively a northwest zip code. 12

13 reinforced with respect to the April 9 and June 26 letters, which were sent certified mail and included an acknowledgement that they were received. 13 Indeed, Respondent has given no explanation that might support a claim that he did not actually receive the June 26 letter, as it was sent to his home, and not returned. Respondent s arguments that the mail might have been lost since there were two buildings (north and south) at the same location and that some mail was sent to Lawrence Fitzgerald rather than Lorenzo are not convincing. Ms. Quarles explained the manner in which mail was handled at Respondent s office, testified that she was aware that Respondent went by different first names, and that she was not aware of any problems with the delivery of his mail. Further, when Respondent complained about his mail, the mail was already in his folder; it just was not picked up. Tr There is nothing in the record that would question Ms. Quarles testimony, other than Respondent s claim that he did not receive the mail. Moreover, Respondent never identified any other mail that had been lost or misdelivered, nor, as noted by the dissent, did he identify the problem that supposedly delayed receipt of the letter or the steps he took to cure the problem. See Dissent at 5-6. Indeed, the Hearing Committee did not find that the mail was not delivered to Respondent s mail folder; rather, it found that Respondent cannot be found to have lied about not actually receiving the mail. H.C. Rpt. at 17. In addition, we find it difficult to believe that Respondent did not receive any of the five letters sent by Bar Counsel and the Court Order requiring him to produce the file for Ms. Vasco, yet none of the mail was returned. That claim is simply not credible. 13 The majority report does not address the significance of the June 26, 2009 letter sent by certified mail to his home. 14 It is not clear from the testimony what mail Ms. Quarles was referring to, whether it was Bar Counsel s correspondence or some other mail. However, it is clear that mail was received at Respondent s office. 13

14 We also have other substantial questions as to Respondent s credibility. 15 As the dissent noted, the record as a whole raises questions about Respondent s truthfulness. Dissent at 5. He stipulated that he lied to Bar Counsel when he said that he sent Mr. Brown s filed to Ms. Vasco in October 2008 and when he told Bar Counsel that he lost the delivery receipt. He stipulated that he failed to respond to numerous Court orders directing him to produce the file. And, while his admissions in the negotiated discipline Affidavits cannot be admitted under our rules to establish that he lied, the inconsistent statements in them raises questions about his truthfulness at the hearing, particularly in light of his admission that he lied in other matters. As the dissent observed, id. at 9, Respondent s explanation for why he falsified the Affidavits does not help us find that he was truthful; to the contrary, it suggests that he is willing to play fast and loose with the truth when it serves his own interests. 16 Finally, we find the majority s credibility findings to lack the characteristics which underlie the Court s rationale for requiring us to give deference to hearing committee credibility findings. As compared to the dissent, the majority made no reference to Respondent s demeanor or forthrightness in responding to questions. Dissent at 5. The majority s finding that Respondent may not have lied when he said he did not receive the mail appears to be based principally on an inference concerning when Respondent contacted Ms. Quarles about the mail problem (H.C. Rpt. at 17-18), rather than a finding that, based on his demeanor and sincerity, he 15 In reaching this conclusion, we have not given any weight to Judge Canan s comments concerning Respondent s reputation. Judge Canan did not provide any specifics concerning the basis for his statement and the Respondent was not given the opportunity to test the basis for the Judge Canan s comment. 16 We agree with the Hearing Committee majority that Respondent s delivery of the file to Ms. Vasco on March 27, 2009 does not establish that Respondent received Bar Counsel s letters. H.C. Rpt. at The Deputy Bar Counsel called him twice to alert him to the complaint and thus he knew that he needed to deliver the file independent of whether he had received the letters. Further, that the letters were in the file indicates that he had not picked them up and that his delivery of the file was not the product of having read them. 14

15 was telling the truth. 17 That is not the type of credibility finding to which we are required to defer. See Anderson, 778 A.2d at Finally, we find it difficult to believe that Respondent did not receive any of the five letters Bar Counsel sent or the Court s order to produce Mr. Brown s file. Not receiving six letters in one matter, without any evidence that other mail was similarly lost, is simply not credible. Based on this record, we conclude that the Hearing Committee s finding that Bar Counsel failed to establish that Respondent lied when he told Bar Counsel that he had not received Bar Counsel s correspondence because of difficulties with his mail delivery is not supported by substantial evidence on the record as a whole. We find that Bar Counsel established by clear and convincing evidence that Bar Counsel s correspondence addressed to his office was delivered and placed in his mail folder. If he did not actually receive it, it was because he did not check his mail folder. Thus, we agree with the dissent that Respondent lied when he attributed his failure to respond to Bar Counsel to problems with the delivery of his mail. With respect to at least the June 26 letter, we find that the letter was received by Respondent. The certified receipt for the letter sent to his home is sufficient to establish that the letter was received there. So, 834 A.2d at 914 n.3. Respondent testified that he generally received mail sent to his home. Tr. 82. He has not adduced any evidence or advanced any explanation that might explain why he did not actually receive it. In all events, however, if he did not receive that letter at home, it was not due to a routing problem at his office. 17 We are also troubled with the majority s conclusion, as the inference is dependent on the date Respondent complained to Ms. Quarles. The record does not establish precisely when Respondent complained about his mail. Tr And, it is unclear whether his complaint was that he was not getting notice when he received mail from the court or whether it was a more generic complaint that might support his argument here. Ms. Quarles, on the other hand, was clear about the procedures used at the office to handle mail and testified that she was unaware that Respondent had any problems with his mail. Tr

16 II. CONCLUSIONS OF LAW A. Failure to Deliver Mr. Brown s File Respondent stipulated that that he violated Rules 1.16(d) and 8.4(d) in failing to deliver Mr. Brown s file to Ms. Vasco in a timely matter. The Hearing Committee so found based on his stipulation. H.C. Rpt. at 15. Rule 1.16(d) requires that lawyers take timely steps to the extent reasonably practicable to protect a client s interests when terminating representation, including surrendering papers and property to which the client is entitled. Failure to deliver a client file to a successor attorney clearly breaches this obligation. See In re Kaufman, Bar Docket No , at 1-2 (BPR Nov. 12, 2010), recommendation approved, 14 A.3d 1136 (D.C. 2011) (per curiam); In re Mabry, 11 A.3d 1292 (D.C. 2011) (per curiam). Rule 8.4(d) prohibits lawyers from engaging in conduct that seriously interferes with the administration of justice. Respondent s failure to deliver the file caused substantial delays in the filing of Mr. Brown s appellate brief and necessitated the institution of contempt proceedings as a result of his failure to produce the file. Imposing those burdens on the judicial system manifestly violates Rule 8.4(d). See In re Vohra, 68 A.3d 766, 783 (D.C. 2013) (appended Board Report); In re Pye, 57 A.3d 960, 974 (D.C. 2012) (per curiam) (appended Board Report). B. Failure to Respond to Bar Counsel in a Timely Manner The Hearing Committee found, based on his stipulation, that Respondent violated Rules 8.1(b) and 8.4(d) in not responding in a timely manner to Bar Counsel s request for information. H.C. Rpt. at 15. Rule 8.1(b) requires lawyers to respond reasonably to a lawful demand for information from Bar Counsel. Bar Counsel argued below that Respondent failed to respond to Bar Counsel s initial requests for information and for information concerning the police report 16

17 from the drive-by shooting. B.C. Proposed Findings of Fact and Conclusions of Law at 23-24; See also Specification of Charges at It is not clear whether the Hearing Committee relied on both claims, or merely Respondent s initial delay in answering Bar Counsel s information requests. However, the evidence is undisputed that Respondent was dilatory in responding to Bar Counsel s initial requests for information and that he did not respond at all to Bar Counsel s request for a copy of the police report. Thus, whether viewed solely in light of his initial lack of response or his failure to respond to the later requests for information, or both, we conclude that Bar Counsel has demonstrated by clear and convincing evidence that Respondent violated Rule 8.1(b). See e.g., In re Godette, 919 A.2d 1157, (D.C. 2007). Similarly, since Bar Counsel was forced to file a motion to compel before Respondent answered the initial requests for information, Bar Counsel has also demonstrated by clear and convincing evidence that Respondent violated Rule 8.4(d). See In re Lea, 969 A.2d 881, , 888 (D.C. 2009). C. False Statements Concerning the Delivery of the File Based on Respondent s stipulation, the Hearing Committee held that Bar Counsel established by clear and convincing evidence that Respondent violated Rules 8.1(a) and 8.4(c) when he claimed he had forwarded Mr. Brown s file to Ms. Vasco in October 2008 and that he was unable to find the receipt for delivery of the file. H.C. Rpt. at 16, Respondent stipulated that he falsely stated to Bar Counsel that he delivered Mr. Brown s file in October 2008 and that he falsely advised Bar Counsel that he could not find the delivery receipt as a result of events surrounding the drive-by shooting of his wife. Based on these uncontroverted stipulations, we find that Respondent violated Rule 8.1(a) in giving false information to Bar 17

18 Counsel. In so doing, he also violated Rule 8.4(c), which prohibits lawyers from engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation. See Vohra, 68 A.3d at 783. D. Respondent s Statements Concerning Receipt of Bar Counsel s Correspondence We have found that Bar Counsel established by clear and convincing evidence that Bar Counsel s March 25, April 9, May 21, and June 3 letters were received at his office and that he received the June 26 letter at his home. With respect to the June 26 letter, we find that Bar Counsel has established by clear and convincing evidence that Respondent violated Rules 8.1(a) and 8.4(c) when Respondent stated that he had not received the letter. We do not reach the question whether Bar Counsel has established by clear and convincing evidence that Respondent was aware that he had received the letters sent to his office. We do not think that Bar Counsel needs to prove that fact to establish a violation of Rule 8.1(a) or 8.4(c) on the facts of this case. It is sufficient that Respondent told Bar Counsel he had not received the letters due to a problem with the handling of his mail a statement that was false. At best, he did not receive the correspondence because he did not check his mail folder. Thus, his statement that he did not receive the mail was disingenuous and inconsistent with his obligation to respond to Bar Counsel. The Court has made it clear that lawyers are held the highest standard of honesty and integrity and those rules can be violated not only by outright lies, but also by a lack of candor or a coloring of the truth. See, e.g., In re Daniel, 11 A.3d 291, 300 (D.C. 2011) ( There is nothing more antithetical to the practice of law than dishonesty, and it cannot be condoned by those charged with protecting the public from unscrupulous conduct by lawyers. ); In re Hutchinson, 534 A.2d 919, 924 (D.C.1987) (en banc) ( Lawyers have a greater duty than ordinary citizens to be scrupulously honest at all times, for honesty is basic to the practice of law. ); see also In re 18

19 Slattery, 767 A.2d 203, 217 (D.C. 2001). The prohibition on engaging in conduct involving dishonesty encompasses conduct evincing a lack of honesty, probity or integrity in principle; [a] lack of fairness and straightforwardness.... Thus, what may not legally be characterized as an act of fraud, deceit or misrepresentation may still evince dishonesty. In re Shorter, 570 A.2d 760, (1990) (per curiam) (quoting Tucker v. Lower, 434 P.2d 320, 324 (Kan. 1967)). As the Court stated in In re Hager, 812 A.2d 904, 916 (D.C. 2002): We have given a broad interpretation to Rule 8.4(c), as recapitulated recently in In re Arneja, 790 A.2d 552, 557 (D.C. 2002). [Dishonesty] encompasses conduct evincing a lack of honesty, probity, or integrity in principle; [a] lack of fairness and straightforwardness.... In re Shorter, 570 A.2d 760, (D.C. 1990) (per curiam) (citation omitted); accord, Slattery, supra, 767 A.2d at 213. See In re Carlson, 745 A.2d 257, 258 (D.C. 2000) (per curiam) (dishonesty may consist of failure to provide information where there is duty to do so); In re Jones-Terrell, 712 A.2d 496, (D.C. 1998) (violation found despite lack of evil or corrupt intent ).... Dishonesty is also the most general term in Rule 8.4(c), encompassing fraudulent, deceitful, or misrepresentative behavior, In re Wilkins, 649 A.2d 557, 561 (D.C. 1994) (per curiam), but also applying to conduct not covered by the latter three terms, which describe degrees or kinds of active deception or positive falsehood. Shorter, supra, 570 A.2d at 768. Here, even assuming arguendo that Respondent was not aware that he had received the correspondence, he did not limit himself to that statement. He stated that he did not receive Bar Counsel s letters of inquiry because of problems with the delivery of mail to his folder. There was no evidence to support that claim other than his own testimony. Further, Respondent never stated that he had checked his mail box and did not find the letters. As the dissent concluded, Respondent s testimony was not credible. And, it was rebutted by Ms. Quarles, who, inter alia, testified that mail was in Respondent s mail folder when they checked. From all that is in this record, Respondent never checked the mail folder to determine whether there was a letter from Bar Counsel. His failure to do so cannot support a statement to Bar Counsel that he was not aware of the letters. Respondent had received a voice mail message concerning the complaint, had picked up a copy of complaint directly from Bar Counsel, and was 19

20 told by the Deputy Bar Counsel that his response was due in a few days. Thus, he knew that a complaint was pending. Since he had received two prior informal admonitions and was aware of Bar Counsel s processes, Respondent should have known that Bar Counsel had requested a response. Respondent cannot claim that he did not know of the correspondence because he hid his head in the sand. In short, we find that Bar Counsel established by clear and convincing evidence that Respondent violated Rules 8.1(a) and 8.4(c) by stating that he was not aware of Bar Counsel s requests because his mail had not been routed to him properly. BX To assert later that he never received the mail without having checked his mail box and attributing the problem to nonexistent mail routing problems amounts to at least a lack of candor, if not the very dishonesty, that these rules enjoin. III. RECOMMENDED SANCTION Both Bar Counsel and the dissent recommended that Respondent be suspended for a period of six months and be required to demonstrate his fitness before being reinstated. We believe that the recommended suspension is too short and, for the reasons set forth below and in the dissent, recommend that he be suspended for a year with a fitness requirement. The appropriate sanction is one that is necessary to protect the public and the courts, maintain the integrity of the profession, and deter other attorneys from engaging in similar misconduct. See In re White, 11 A.3d 1226, (D.C. 2011) (per curiam) (appended Board Report) (citing In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc)). In determining the appropriate sanction, we are to consider, inter alia, the nature and seriousness of the misconduct, 18 We are not relying on the constructive receipt theory espoused by the dissent, although we agree that a lawyer may not maintain to Bar Counsel, or a court, that he or she did not receive correspondence when the reason they did not receive it was that they did not pick it up. 20

21 prior discipline, prejudice to the client, the respondent s attitude and circumstances in mitigation. See e.g, In re Elgin, 918 A.2d 362, 376 (D.C. 2007); Slattery, 767 A.2d at The sanction must also be consistent with cases involving comparable misconduct. See D.C. Bar R. XI, 9(h)(1); Elgin, 918 A.2d at 373; In re Berryman, 764 A.2d 760, 766 (D.C. 2000). A. Seriousness of the Misconduct and Prejudice to his Client Respondent failed to deliver Mr. Brown s file to Ms. Vasco for a period of approximately six months. She was required to ask for the file twice, file a motion to compel, and seek a contempt citation when Respondent failed to deliver the file. He only delivered the file as a result of his client, Mr. Brown, serving his letter to Respondent on Bar Counsel. As a result, the appeal of his conviction was postponed by months while Mr. Brown sat in prison. Even after finally delivering the file, Respondent delayed in responding to Bar Counsel for an additional month, and then misrepresented to Bar Counsel when he had delivered the file and falsely alleged that he had lost the delivery receipt. He subsequently delayed the disciplinary proceeding by not responding to Bar Counsel s requests for a copy of the police report, forcing Bar Counsel to seek the report with a subpoena. He then again misrepresented that he had not received Bar Counsel s requests, even though at least one of the letters was sent certified mail and Bar Counsel received an acknowledgement of receipt. Thus, Respondent not only prejudiced his client, he imposed unnecessary burdens on the Court, Bar Counsel, and the Board, and failed to discharge his obligations to cooperate with Bar Counsel and deal with Bar Counsel honestly and candidly. B. Prior Discipline This is not the first time Respondent has been before the disciplinary system for similar types of conduct. He received an informal admonition in 2002 for failing to deliver a client file 21

22 to a successor attorney (BX 38), and received another informal admonition in 2005 for failing to respond to Bar Counsel s request for information (BX 39). In the second matter, Respondent failed to respond to Bar Counsel s initial request for information, picked up the complaint at Bar Counsel s office, obtained an extension of time to respond, which he did not meet, and responded only after Bar Counsel filed a motion to compel. Id. The conduct in that matter bears a striking similarity to the conduct here, and reinforces the seriousness of his misconduct. Respondent was on notice that this kind of delaying tactic is inconsistent with his obligations under the Rules of Professional Conduct. C. Mitigating and Aggravating Factors Respondent s wife s shooting might have mitigated his initial delay in not sending the file to Ms. Vasco shortly after the shooting, but it does not explain his failure to deliver the file after the Court ordered him to do so and after the Court issued a show cause order. It also does not mitigate his failure to respond to Bar Counsel s requests for information throughout the Spring of 2009, after the shooting and after his wife had been discharged from the hospital. Similarly, Respondent s claims of cooperating with Bar Counsel are not persuasive. They came too late and appear to be motivated more by a desire for a lesser sanction than acceptance of his misconduct, or a recognition of his obligation to cooperate with Bar Counsel. In short, we find Respondent s misconduct was serious and prejudicial to his client, that he has not shown any real remorse for his conduct, and that he has a record of prior rule violations involving comparable conduct. His dishonesty in testifying falsely before the Hearing Committee is an additional aggravating factor. In re Cleaver-Bascombe, 986 A.2d 1191,

23 (D.C. 2010) (per curiam). 19 His mitigating factors are minimal and do not offset the seriousness of his conduct. D. Sanction The sanctions for violations of Rule 1.16 for failing to return a file to a client or successor counsel range from an informal admonition to a short suspension. E.g., Kaufman, 14 A.3d at 1136 (public censure for failure to turn over files and related neglect of former client); In re Thai, 987 A.2d 428, 431 (D.C. 2009) (per curiam) (60 day suspension for failing to return file); In re Mance, 980 A.2d 1196, 1209 (D.C. 2009) (public censure). Given Respondent s prior informal admonition for similar misconduct, that rule violation standing alone would warrant a sanction in the higher range. However, that is not Respondent s only or most serious violation; he also violated Rules 8.1(a), 8.1(b), 8.4(c), and 8.4(d). Sanctions for violating those rules are typically more severe, ranging from multi-month suspensions to disbarment, depending on the severity of the misconduct. See, e.g., In re Solomon, 945 A.2d 614, 615 (D.C. 2008) (per curiam) (120-day suspension for violating Rule 8.1(b) and for failure to cooperate with Bar Counsel); Lea, 13 A.3d at 772 (180-day suspension for practicing while suspended and making false statements to Bar Counsel); In re Carter, 11 A.3d 1219, 1224 (D.C. 2011) (per curiam) (18-month suspension with fitness for violating Rule 8.1(b) and Rule 8.4(c) by not cooperating with and being dishonest with Bar Counsel and Rules 8.4(c) for making false statements to a court and failing to appear at a scheduled hearing); In re Martin, 61 A.3d 1032, 1056 (D.C. 2013) (18-month suspension for false testimony and false statements on Virginia Bar application); Daniel, 11 A.3d at 302 (three- 19 We also find disturbing Respondent s statement to the Court in his contempt proceeding that he had not received the Court order to produce Mr. Brown s file. At a minimum, it reflects a pattern of conduct that is not consistent with a lawyer s obligations to the courts. 23

24 year suspension with fitness for violating Rule 8.4(c) by lying to the IRS and falsely labeling an operating account as a trust account); Vohra, 68 A.3d at 789 (three-year suspension with fitness for violations of Rules 8.1(a), 8.4(b), (c) & (d) for misrepresentations to clients and Bar Counsel); Cleaver-Bascombe, 986 A.2d at 1201 (disbarment for violating Rules 8.4(c) and 8.4(d) in falsifying a CJA voucher and false hearing testimony); In re Kanu, 5 A.3d 1 (D.C. 2010) (disbarment for violations of Rule 8.4(c) & (d) for failure to cooperate with Bar Counsel and dishonesty in dealing with clients). 20 As the Court has frequently noted, determining the appropriate sanction is often the most difficult task as few cases involve fully comparable factual settings. This case is no different. The dissent recommended a six-month suspension based on the decisions in Mance, supra, In re Ukwu, 926 A.2d 1106 (D.C. 2007), and In re Lilly, 765 A.2d 547 (D.C. 2011) (per curiam). However, none of those cases involved the pattern of dishonesty or lack of candor present in this case. We believe the facts of this case are closer to Carter, supra. In that case, the respondent made false representations to a District Court, lied to Bar Counsel in claiming that he had made a partial payment of an Attorney-Client Arbitration Board award to a client when he had not, and failed to respond to Bar Counsel s request for information. 11 A.3d at He also had a prior disciplinary record. Id. at The respondent was suspended for 18 months with a fitness requirement. Id. at We are recommending a somewhat shorter suspension because that case involved several other rule violations not present here and misconduct involving three clients, whereas here only one client was involved. 20 We do not believe that Respondent s conduct amounts to flagrant dishonesty. While repeated, it did not involve conduct which inured to his personal financial benefit, as was the case in Cleaver-Bascombe, supra, nor did it involve the lying to clients or the level of harm to clients as was involved in Kanu, supra. 24