DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: : : KIM E. HALLMARK, : : Respondent. : D.C. App. No. 03-BG-762 : Bar Docket No A Suspended Member of the Bar of the : District of Columbia Court of Appeals. : (Bar Registration No ) : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter is before the Board on Professional Responsibility (the Board ) to consider the sanction to be imposed on Respondent because of her conviction on eight misdemeanor charges. The charges arose out of Respondent s dealings with four different rental properties during the period April 2000 through July 2002, resulting in over $40,000 in damages to her victims. BX 4. 1 For the reasons set forth below and in the Report and Recommendation of the Ad Hoc Hearing Committee we recommend that the Court find that the crimes for which Respondent was convicted involved moral turpitude and therefore Respondent must be disbarred. I. BACKGROUND Respondent Kim E. Hallmark was admitted to the Bar of the District of Columbia on June 7, BX As used herein, BX refers to Bar Counsel s exhibits; Tr. refers to the transcript of the hearing held on December 3, On August 28, 2003, the D.C. Court of Appeals suspended Respondent from the practice of law in the District of Columbia for 90 days, with her reinstatement conditioned upon a showing of fitness to practice law and proof of restitution as directed by the Board on Professional Responsibility. In re Hallmark, 831 A.2d 366 (D.C. 2003). Respondent was found to have failed to keep clients reasonably apprised of the status of matters or to respond to (footnote continued on next page)

2 On July 18, 2003, Respondent pled guilty to eight misdemeanor charges: five counts of theft, two counts of fraud, and one count of contempt of court. BX 3, 4. The court sentenced Respondent to 17 months in prison. BX 11. As a result of her conviction, the District of Columbia Court of Appeals ordered Respondent suspended from the practice of law in the District of Columbia and directed the Board to institute a formal proceeding to determine the nature of the final discipline to be imposed, and specifically to review the elements of the offenses for which she had been convicted for purposes of determining whether the crimes involved moral turpitude within the meaning of D.C. Code (a). Order, In re Hallmark, No. 03-BG-762 (D.C. Aug. 1, 2003). As the Court has held that a misdemeanor conviction can never involve moral turpitude per se, In re McBride, 602 A.2d 626 (D.C. 1992) (en banc), the Board referred the matter to a hearing committee to determine whether Respondent s conviction involved moral turpitude on the facts, and if not, for a recommendation of the appropriate final discipline in light of Respondent s conviction of a serious crime. Order, In re Hallmark, Bar Docket No (BPR Nov. 7, 2003). An Ad Hoc Hearing Committee was convened to hear the matter. The Hearing Committee held a hearing in which Respondent and Bar Counsel participated. The Hearing (footnote continued from previous page) reasonable requests for information, in violation of Rule 1.4(a); to protect clients interest upon withdrawal by surrendering client files and returning any unearned fees, in violation of Rule 1.16(d); and to respond to Bar Counsel or comply with orders of the Board on Professional Responsibility, in violation of Rule 8.4(d) and D.C. Bar R. XI, 2(b)(3) and (4). This suspension is still in effect as Respondent has not sought reinstatement. Respondent also received an informal admonition from Bar Counsel in 1996 for failing to surrender files to her client in a timely manner. Informal Admonition, In re Hallmark, Bar Docket No (1996). During the hearing in this matter Bar Counsel offered two exhibits as evidence of respondent s prior discipline. Tr. at to Although the Hearing Committee never ruled on the admission of these exhibits, the Board takes notice of the existence of this prior discipline. 2

3 Committee also considered the post-hearing submissions of Respondent and Bar Counsel. In its Report and Recommendation, the Hearing Committee recommended a finding that Respondent s criminal conduct involved moral turpitude and that Respondent be disbarred. Neither Respondent nor Bar Counsel have filed exceptions to that report. 3 II. FINDINGS OF FACT The acts of Respondent that led to her conviction are not in dispute. They were contained in the Proposed Findings of Fact offered by Respondent in her post-hearing submission. Respondent's Proposed Findings of Fact at They are also reflected in the record that was before the Hearing Committee and which is now before the Board. BX 4, bate ("Factual Proffer" that Respondent signed in July 2003 as part of her negotiated guilty plea); BX 5, bate (prosecutor s proffer of facts that could be proved and judge s examination of Respondent during hearing to accept the plea agreement). In summary: a. The New Jersey Avenue Premises On or about April 14, 2000, Respondent leased an apartment from Katey and Michael Gaietto. The check that Respondent initially tendered for a first month s rent and a security deposit was dishonored. Eventually, Respondent tendered a total of two months' rent and a security deposit, although she occupied the premises for ten months. On or about September 17, 2000, Respondent sublet the premises to Mr. Chris Yeung. Mr. Yeung paid Respondent three months rent for less than two months occupancy; Mr. Yeung vacated the premises when he learned that Respondent was not in fact the landlord. Meanwhile, Respondent sued the 3 In a letter dated June 15, 2009, Bar Counsel informed the Executive Attorney of the Board that he would not be taking any exceptions to the report and recommendation of the Ad Hoc Hearing Committee. Respondent has filed nothing. 3

4 Gaiettos regarding the premises, and they countersued seeking to evict Respondent. On December 11, 2000, the Superior Court ordered Respondent not to advertise, rent or collect rent on the New Jersey Avenue Premises. Notwithstanding the Court s order, Respondent continued to advertise the premises for rent and in January 2001 rented the premises to Mr. Jeffrey Taylor, and received and deposited a check for rent from Mr. Taylor. In connection with the New Jersey Avenue Premises, Respondent pled guilty to theft from the Gaiettos (in violation of 22 D.C. Code 3211, 3212(b)); theft from Mr. Yeung (in violation of 22 D.C. Code 3211, 3212(b)); fraud on Mr. Taylor (in violation of 22 D.C. Code 3211, 3212(b)); and contempt (in violation of 11 D.C. Code 944(a)). b. R Street Premises On or about August 25, 2000, Respondent entered into a lease for a condominium in the 1700 Block of R Street, N.W. owned by Joseph Price. The term of the lease was one year. Respondent resided in the condominium until she was evicted on March 19, 2001 for failing to pay rent having paid Mr. Price only two months' rent (plus a security deposit.) While the eviction proceeding was underway, Respondent advertised the condominium for rent. Without disclosing the eviction proceedings or a judge s order that she vacate the premises, Respondent accepted from Ms. Jane Ottenberg, on behalf of Ms. Ottenberg's nephew Jeffrey Katz, two checks for the rental of the unit by Mr. Katz. Respondent negotiated the checks and refused Ms. Ottenberg's demand for the return of the funds even though Mr. Katz was not allowed to occupy the unit. In connection with the R Street premises, Respondent pled guilty to theft from Mr. Price (in violation of 22 D.C. Code 3211, 3212 (b)); and theft from Ms. Ottenberg (in violation of 22 D.C. Code 3211, 3212 (b)). 4

5 c. Chien Condominium On or about March 12, 2001, Respondent applied to rent a condominium owned by Mr. Chang-Fu Chien in the 2000 Block of 16th Street, N.W. A few days later, Respondent signed a lease agreement for the apartment and gave Mr. Chien the receipt portion for three certified checks as payment for the two months' rent. Respondent then cashed the checks at SunTrust Bank. She lived in Mr. Chien's condominium for approximately six months, but only paid him rent for two months. In connection with the Chien Condominium, Respondent pled guilty to theft from Mr. Chien (in violation of 22 D.C. Code 3211, 3212 (b)). d. Vermont Avenue Premises On or about February 16, 2002, Respondent signed a two-month lease agreement with Dorothy Simmons for an apartment in the 1500 Block of Vermont Avenue, N.W. Respondent did not vacate the premises until three months after her lease term expired, and did not pay all of the rent due and owing. In the Factual Proffer that was made as part of her plea agreement, Respondent specifically agreed that she had acted in reckless disregard of her ability to pay the rent required under the lease. (BX 4, Factual Proffer, at 4). Respondent pled guilty to misdemeanor fraud on Ms. Simmons (in violation of 22 D.C. Code 3211, 3212 (b)). During the hearing, Bar Counsel called Michael Coleman, a former Secret Service agent who assisted the U.S. Attorney s Office in the investigation of the circumstances underlying the events to which Respondent had pleaded guilty. Tr. at to Mr. Coleman testified that in talking with the landlords and other victims of Respondent's activities, each reported that he or she had been advised by Respondent that Respondent was an attorney, and that Respondent's reference to her status as an attorney led the victims to trust Respondent. Tr. at to During her testimony, Respondent acknowledged that she discussed the cases 5

6 that she was working on with the people that she was dealing with and that they were aware that she was an attorney. Tr. at to Respondent also testified that she accepted complete responsibility for a series of landlord/tenant relationships that went bad, and that it was a very unusual and irregular situation that is without excuse. Tr. at 76-2 to Respondent explained that because of economic and other pressures associated with a police misconduct case she was handling before U.S. District Judge Urbina, she made wrong choices, including not paying rent to landlords. Tr. at 81-1 to 81-10; 85-2 to She claimed that after her co-counsel withdrew from the matter, she was left as the only lawyer on the case, and was stretched financially in dealing with experts and in juggling the demands of the rest of her solo practice. Tr. at to She testified that: Whenever, you know, there was a decision to be made about putting money in the case or putting, you know, or paying rent on time or something, I would always, I was skirting that, and that created a number of problems with landlords. And then of course, once the first case was filed in court when I went to the second place and was late on the rent, then there was a record of having a first landlord tenant case, and then both landlords were mad at me. Tr. at 81-1 to Respondent further testified that regular financial support she had been receiving from her family had stopped around the time of the events, and that she was not managing her money or affairs correctly, resulting in growing obligations. Tr. at to Based on the evidence before it and having had the opportunity to observe the demeanor of the witnesses, the Hearing Committee concluded: for a period of almost two years, Respondent swindled a series of landlords and prospective subtenants. She entered into leases that she either knew or should have known she could not honor, and she did not honor them. But unlike a situation where a tenant gets behind in her obligations, Respondent took advantage of the situation by soliciting unwitting third parties who would pay money for the use of 6

7 premises that Respondent herself would not pay for. And Respondent did not even use the third-party money to pay the rent: that money too went into Respondent's pocket. There was nothing accidental or circumstantial or unfortunate about Respondent's situation. To the contrary, Respondent compounded a bad situation (inability to pay rent) by related but distinct unlawful activity (soliciting tenants for space and pocketing their funds). Hearing Committee Report at 5. III. CONCLUSIONS OF LAW Under D.C. Bar R. XI, 10(d), when an attorney has been convicted of a serious crime the sole issue before the Board is the nature of the final discipline to be imposed. In examining the nature of the final discipline, the initial inquiry is about whether the crime for which the Respondent has been convicted involves moral turpitude for if it does then disbarment is required by D.C. Code (a). See In re Colson, 412 A.2d 1160 (D.C. 1979). If the crime does not involve moral turpitude per se, the matter is referred to a hearing committee for an inquiry into the facts surrounding the conviction. See In re Kerr, 611 A.2d 551, 553 (D.C. 1992). Bar Counsel bears the burden of proving by clear and convincing evidence that an attorney's misconduct involves moral turpitude. In re Sims, 844 A.2d 353, 365 (D.C. 2004). We agree with the Hearing Committee that Bar Counsel has more than met that burden here. In determining whether a crime involves moral turpitude, we examine whether the prohibited conduct is base, vile or depraved, or whether society manifests a revulsion toward such conduct because it offends generally accepted morals. Sims, 844 A.2d at (citing Colson, 412 A.2d 1160 and McBride, 602 A.2d 626). The Court of Appeals has consistently held that misdemeanor crimes involving theft or fraud for personal gain are crimes involving moral turpitude. In re Sneed, 673 A.2d 591, 594 (D.C. 1996); In re Untalan, 619 A.2d 978, 979 (D.C. 1993) (per curiam); In re Shorter, 570 A.2d 760, 765 (D.C. 1990) (per curiam). Indeed, 7

8 as the Court stated, the commission of any crime involving an intent to defraud would have to be exceptional to warrant the conclusion that moral turpitude was not involved. McBride, 602 A.2d at 635. Respondent was convicted on both theft and fraud charges and the record before us demonstrates that Respondent clearly intended to defraud multiple people for personal gain. First, her conviction on two counts of fraud establishes that she had specific intent to defraud Mr. Taylor and Ms. Simmons. In addition, the testimony of both Mr. Coleman and of Respondent established that Respondent made clear to the landlords that were victimized that she was an attorney. As Respondent noted, this created an expectation that her conduct would be different than it actually was. Tr to Furthermore, there were multiple occurrences of this behavior. Respondent established a pattern of renting apartments, failing to pay the lease and then trying to find someone to sublet the apartments at a time when she knew that she had lost, or was about to lose, possession of the apartment. As the Hearing Committee found, Respondent did not even use the third-party money to pay the rent: that money too went into Respondent s pocket. Hearing Committee Report at 5. She even violated a court order in furtherance of her scheme. Finally, we note that Respondent's conduct involved over $40,000 in damages to her victims. BX 9, at 171. There is nothing in the record to support a finding that the circumstances in the matter before us were exceptional in a manner that warrants the conclusion that moral turpitude was not involved. McBride, 602 A.2d at 635; cf. In re Soininen, 783 A.2d 619, 620 (D.C. 2001) (one-time misdemeanor theft shown to be a spontaneous event and an exceptional circumstance). 8

9 Although Respondent pled guilty to misdemeanors, the conduct involved theft and fraud for personal gain and clearly offended generally accepted morals. See Sims, 844 A.2d at The offenses to which Respondent pled guilty were crimes involving moral turpitude. IV. CONCLUSION In light of a finding that Respondent was convicted of offenses involving moral turpitude, disbarment is required by D.C. Code (a). We recommend that Respondent be found to have been convicted of an offense involving moral turpitude and that she be disbarred. The period of disbarment should run, for purposes of reinstatement, from the date Respondent files the affidavit required by D.C. Bar R. XI, 14(g). See In re Slosberg, 650 A.2d 1329, (D.C. 1994). BOARD ON PROFESSIONAL RESPONSIBILITY By: /RFS/ Russell F. Smith, III Date: March 2, 2010 All members of the Board concur in this Report and Recommendation except Ms. Cintron, who did not participate. 9