DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY AD HOC HEARING COMMITTEE

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY AD HOC HEARING COMMITTEE In the Matter of: : : DENNIS P. CLARKE, : : Board Docket No. 11-ND-002 Respondent. : Bar Docket No : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Membership No ) : REPORT AND RECOMMENDATION OF AD HOC HEARING COMMITTEE APPROVING PETITION FOR NEGOTIATED DISCIPLINE I. Procedural History This matter came before an Ad Hoc Hearing Committee on June 16, 2011, for a limited hearing on a Petition for Negotiated Discipline (the Petition ). The members of the Hearing Committee are Gregory S. Smith, Esquire, Chair; Lula Ivey, Public Member; and Blanche Bruce, Esquire, Attorney Member. The Office of Bar Counsel was represented by Assistant Bar Counsel H. Clay Smith, III, and Respondent, Dennis P. Clarke, was represented by Joseph A. Compofelice, Jr. All parties and counsel were present throughout the limited hearing. The Hearing Committee has carefully considered the Petition for Negotiated Discipline signed by Bar Counsel, Respondent and Respondent s counsel, filed on February 7, 2011, the supporting affidavit submitted by Respondent (the Affidavit ), also filed on February 7, 2011, and the representations made during the June 16, 2011 limited hearing, made by Respondent, Respondent s counsel and Bar Counsel. The Hearing Committee also has been apprised of the Chair s in camera review of Bar Counsel s files and records, and the Chair s ex parte

2 communications with Bar Counsel. 1 For the reasons set forth below, this Ad Hoc Hearing Committee approves the Petition, finds the negotiated discipline (suspension from the practice of law for 90 days with all but 30 days stayed, followed by two years of probation) is justified, and recommends that the negotiated discipline be accepted and imposed by the Court. II. Findings pursuant to D.C. Bar R. XI, 12.1(c) and Board Rule 17.5 The Hearing Committee, after full and careful consideration, finds that: 1. The Petition and Affidavit are full, complete, and in proper order. 2. Respondent is aware that there is currently pending against him an investigation into and/or a proceeding involving allegations of misconduct. Tr. at 15-16; Affidavit at The allegations that Respondent self-reported, and which were brought to the attention of Bar Counsel, are that Respondent, while acting as the principle attorney at his law firm responsible for editing and submitting bills to a certain client ( Client ), a university, submitted to the Client bills which falsely stated the billable rate for certain associates and paralegals who had worked on the client s legal matters. Petition at 1. The specifics of these allegations, including the details of the various billings, are set forth in the Petition at 2-31, and the sum total of these false billings amounted to $20, The Petition alleges a violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit and/or misrepresentation). Petition at 33(a). 4. Respondent has knowingly and voluntarily acknowledged that the material facts and misconduct reflected in the Petition are true. Tr. at 16-17; Affidavit at 4. Specifically, Respondent acknowledges that he violated Rule 8.4(c), which provides 1 The Hearing Chair indicated that, if necessary, he would state for the record the substance of these ex parte conversations, but Respondent stated that this would not be necessary. Tr. at 9. 2

3 that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. In particular, Respondent admits that a letter of engagement with the Client had set forth specifically certain hourly rates to be charged to the Client by his law firm, based on whether the attorney working on the Client s matters was a Principal, Associate, or Paralegal. On several occasions, Respondent, who was responsible for managing the legal work of these Associate attorneys and Paralegals working on projects for the Client, and for editing, on behalf of the law firm, the bills for legal services performed for the Client on projects contemplated by the engagement letter, inflated the hourly rates of certain other persons in his firm working on such matters, by falsely billing the Client for the work of certain Associate attorneys and Paralegals, specified in the Petition, at rates in excess of the agreed-upon rates. These inflated rates were applied to several Associate Attorneys and Paralegals, and several billing cycles, as set forth in the Petition. Petition at The inflated billing rates do not necessarily appear to follow any particularized pattern, and there is no allegation that the stated hours worked (as opposed to the billing rates) were ever inflated. There also is no suggestion that the false billings affected any other client of Respondent or his law firm. Tr. at The Client paid the law firm for all of the bills as edited, but the law firm discovered Respondent s billing irregularities in or about December The Client was notified of the billing irregularities, and on or about February 21, 2006, the law firm reimbursed the Client for its overpayment of $20, Petition at The law firm also stripped Respondent of his equity partner status in the firm, Tr. at 37-38, and suggested that Respondent contact independent counsel, without any further suggestion as to how he should proceed. After 3

4 receiving the advice of counsel, Respondent then self-reported these matters to the D.C. Bar. Tr. at Respondent is agreeing to the disposition because Respondent believes that he cannot successfully defend against discipline based on the stipulated misconduct. Tr. at 17; Affidavit at Bar Counsel has made no promises to Respondent other than what is contained in the Petition for Negotiated Discipline. Affidavit at 7. Those promises and inducements are that Bar Counsel will not pursue against Respondent any other disciplinary violations that could have been brought against him in Bar Docket No D334, based upon his conduct described in the Petition. Petition at 34. Respondent has expressly acknowledged during the limited hearing that there have been no other promises or inducements other than those set forth in the Petition. Tr. at 18. Bar Counsel expressly stated during the limited hearing that no other charges were warranted based on the misconduct. Id. at Respondent has conferred with his counsel, has discussed with his counsel the contents of the Petition for Negotiated Discipline and Affidavit, and acknowledges that he has had suffficent time to discuss with his counsel this decision to enter into negotiated discipline. Tr. at 10-11; Affidavit at Respondent has knowingly and voluntarily acknowledged the facts and misconduct reflected in the Petition for Negotiated Discipline and agreed to the sanction set forth therein. Tr. at 16-18; Affidavit at 4 & Respondent is not being subjected to coercion or duress. Tr. at 10-11, & 24; Affidavit at 6. 4

5 10. Respondent is competent and not under the influence of any substance or medication that has affected his ability to act knowingly and voluntarily. Tr. at Respondent is fully aware of the implications of the disposition being entered into, including, but not limited to, the following: Tr. at & 20-22; Affidavit at 9. a) he will waive his right to cross-examine adverse witnesses and to compel witnesses to appear on his behalf; b) he will waive his right to have Bar Counsel prove the charge by clear and convincing evidence; c) he will waive his right to object or file exceptions to reports and recommendations filed with the Board and with the Court; d) the negotiated disposition, if approved, may affect his present and future ability to practice law; e) the negotiated disposition, if approved, may affect his bar memberships in other jurisdictions; and f) any sworn statement by Respondent in his affidavit or any statements made by Respondent during the proceeding may be used to impeach his testimony if there is a subsequent hearing on the merits. 12. Respondent and Bar Counsel have agreed that the sanction in this matter should be a 90-day suspension from the practice of law, with all but 30 days stayed, and two years of probation, with a further understanding that, if a new investigation alleging ethical misconduct occurs during that probationary period, which results in a finding that the Respondent violated the rules, Respondent will be required to serve the remaining 60 days of suspension consecutively to any sanction imposed against him in connection with the new matter or matters. Petition at 35; Tr. at 6 &

6 13. Respondent further understands that he must file with the Court an affidavit pursuant to D.C. Bar R. XI, 14(g) in order for his suspension to be deemed effective for purposes of reinstatement. Tr. at 22-23; Affidavit at Bar Counsel stipulates that there is no evidence in aggravation of this misconduct. Petition at 40. The Hearing Committee does note, however, that the evidence and stipulated facts in this case reveal that these violations occurred on several different occasions, over a somewhat extended period of time, involving the billing rates of multiple Associate attorneys and Paralegals, and covering their work on multiple projects for this Client. Petition at Respondent stipulates to the following circumstances in mitigation, which the Hearing Committee has taken into consideration: (1) Respondent has taken full responsibility for his misconduct and has demonstrated remorse; (2) Respondent selfreported his misconduct and has cooperated with Bar Counsel; (3) Respondent has no prior disciplinary history; and (4) Respondent is 73 years old, and has a history of mental health issues, although the parties agree that there is no causal connection between Respondent s mental health issues and his misconduct. Petition at 36-39; Affidavit at 15; Tr. at Further evidence in mitigation was presented during the limited hearing pursuant to Board Rule 17.4(a). The factors in mitigation were amplified, with Respondent s counsel noting that Respondent has practiced for 45 years in this jurisdiction with no prior disciplinary record at all, Tr. at 34, and that Respondent has suffered from four major episodes of depression during the past 20 years. Tr. at Because the parties have stipulated that there was no casual connection between Respondent s depression and his misconduct, the Hearing Committee does not place any mitigating weight on Respondent s mental health issues. 6

7 17. The Hearing Committee was also advised that Respondent has already faced significant private consequences as a result of his misconduct, including being stripped of his equity partner status in the firm where he had worked at the time of these violations. Tr. at His law firm also stripped Respondent of his ability to bill clients, id., and Respondent has since left that law firm, and now works at a different, small law firm, where his billings continue to be monitored. Tr. at 53. The Hearing Committee was also advised that Respondent was receiving a flat salary during the period in question, and that there was no proportional relationship between what he billed and collected and what he received in compensation. Tr. at 37. Although this fact does not necessarily eliminate all of the possibilities in which Respondent could have personally benefitted indirectly from his actions, Tr. at & 41-42, the Respondent swore under oath that he was not thinking about any personal gain when he engaged in these activities, Tr. at 56, and Bar Counsel acknowledged that there was no evidence that he benefitted financially or was going to benefit financially prospectively as a result of the billing in this particular case. Tr. at In addition, although there is technically no complainant here, since the Respondent self-reported, the Client that was the victim of Respondent s overbilling was contacted by Bar Counsel at the urging of this Hearing Committee Chair, based on a request made at the pre-hearing conference. Although the Client was notified of the limited hearing and the Hearing Committee s willingness to consider its comments, it chose not to appear and did not provide any written comment. Bar Counsel further reported, however, that based on his conversations with the responsible attorney for the victim university, the university had no problem with the proposed negotiated disposition, and that since the university had been made whole through Respondent s 7

8 law firm s reimbursements, the university was completely satisfied with the outcome in this matter, and considers this matter closed. Tr. at 7-8. In fact, it was also reported during the limited hearing that this Client, notwithstanding its awareness of the underlying circumstances of this disciplinary violation and proposed sanction, has since hired the Respondent to perform further legal work on its behalf. Tr. at 38 & Bar Counsel and Respondent have submitted a statement of relevant precedent in support of the agreed-upon sanction. The principal cases relied upon are In re Bikoff, 784 A.2d 915 (D.C. 1995); In re Schneider, 553 A.2d 206 (D.C. 1989); and In re Scanio, 919 A.2d 1136 (D.C. 2009). The Petition also cites to several additional cases as illustrative examples of suspensions in the day range being approved by the Court of Appeals in the context of similar situations. Petition at p. 8. III. Discussion The Hearing Committee shall approve an agreed negotiated discipline if it finds that: a) the attorney has knowingly and voluntarily acknowledged the facts and misconduct reflected in the Petition and agreed to the sanction therein; b) the facts set forth in the Petition or as shown during the limited hearing support the attorney s admission of misconduct and the agreed upon sanction; and c) the agreed sanction is justified. D.C. Bar R. XI, 12.1(c); Board Rule 17.5(a)(i)-(iii). The Court has held that there is no automatic presumption that a negotiated petition for discipline should be approved. In re Johnson, 984 A.2d 176, 180 (D.C. 2009) (per curiam). At the same time, the rule distinctly limits the powers that committees 'historically' possessed under D.C. Bar R. XI, 5(c)(1)-(2), 9(a) (2008)... 8

9 to conduct hearings, make findings, and submit a report and a recommendation to the Board.... Id. at 181. Instead, the committee s discretion to make findings [in a negotiated discipline case] is limited to ascertaining that [t]he facts set forth in the petition or as shown at the hearing support the admission of misconduct. Id. (emphasis and alteration in the original). In determining whether the sanction is justified, some consideration may be given to what charges might have been brought, but only to ensure that Bar Counsel is not offering an unduly lenient sanction--the ultimate focus must be on the propriety of the sanction itself. Id. With regard to the first factor, the Hearing Committee finds that Respondent has knowingly and voluntarily acknowledged the facts and misconduct reflected in the Petition and has agreed to the sanction therein. Respondent, after being placed under oath, admitted the stipulated facts and charges set forth in the Petition and denied that he is under duress or has been coerced into entering into this disposition. Tr. at 18-19; Affidavit at 4 & 6. Respondent understands the implications and consequences of entering into this negotiated discipline. Tr. at & 20-24; Affidavit at Respondent has acknowledged that any and all promises that have been made to him by Bar Counsel as part of this negotiated discipline are set forth in writing in the Petition and that there are no other promises or inducements that have been made to him. Tr. at 18; Affidavit at 7. The Hearing Committee has carefully reviewed the facts set forth in the Petition and established during the hearing and we conclude that they support the admission of misconduct and the agreed upon sanction. Moreover, Respondent is agreeing to this negotiated discipline because he believes that he could not successfully defend against the misconduct described in the Petition. Tr. at 17; Affidavit at 5. 9

10 With regard to the second factor, the Petition states that Respondent violated Rule of Professional Conduct 8.4(c), which provides that [i]t is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The evidence supports Respondent s admission that he violated Rule 8.4(c), in that the stipulated facts describe a series of billings involving several Associate attorneys and Paralegals, occurring on several occasions, over an extended period of time. The inflated rates also vary among these persons and even as to billing rates for the same person, confirming that these changes were not the result of accident or mistake, or some systemic problem within the law firm s billing program. It is undisputed that the billing rates for these Associate attorneys and Paralegals were changed by the Respondent, knowingly, intentionally and dishonestly. The third and most complicated factor that any Hearing Committee must consider is whether the sanction agreed upon is justified. In performing this analysis, the following factors, among others, may be relevant: (i) the number of charges or a pattern of misconduct; (ii) whether the parties stipulation concerning the respondent s intent is supported by the objective evidence in the record (see In re Harris-Lindsey, Bar Docket No (BPR July 1, 2010), approved No. 09-BG-946 (D.C. May 19, 2011)); (iii) the gravity of the charges Bar Counsel agreed not to pursue as part of the negotiated discipline; and (iv) the range of sanctions imposed in cases involving comparable misconduct. Examining the first factor, only one charge is filed against the Respondent. Although on some levels it might be said that a pattern existed, in that the inflated billing rates involved several attorneys and paralegals, and several billing cycles, it also plainly involved only one client. So this factor is largely neutral. 10

11 Examining the second factor, the Respondent s dishonest intent is clear from this record. On the other hand, there is no clear evidence that this dishonesty benefitted him directly. And that wrongful intent is also offset by various mitigating factors, described more fully below. Examining the third factor, Bar Counsel advises that [t]here were no other charges to bring other than the charges that are set forth in our petition. Tr. at 27. Finally, the range of sanctions is described by Bar Counsel as anywhere from 30 days to several years. Tr. at 27. Upon consideration of the entire record in this matter including the circumstances in aggravation and mitigation and the relevant precedent, we conclude that the agreed upon negotiated discipline of a 90 day suspension with all but 30 days stayed, followed by two years of probation is justified. The instant violation, by all accounts, represents an aberration in a legal career spanning 45 years in this jurisdiction. A suspension, even if all but 30 days are stayed, will nevertheless have significant reputational sting for this Respondent with an unblemished ethical record. Respondent has also already faced significant private consequences from his misconduct. The Hearing Committee places relatively little emphasis on the claim by Respondent and his counsel that he received no personal benefit from these actions. These claims may appear somewhat counterintuitive in the context of traditional law firm compensation structures, but the Hearing Committee nevertheless acknowledges that no direct benefit is apparent. The Hearing Chair s in camera review of the disciplinary file revealed no apparent evidence of direct personal benefit to the Respondent, and Bar Counsel in fact affirmatively stated at the limited hearing that there is no evidence in the record at all of any personal benefit to Respondent from these actions. 11

12 Examining other possible mitigating factors, we fully credit the significance of Respondent s self-reporting, which we have confirmed was not simply the result of a threat from the law firm that it would report the offense if Respondent did not. We also acknowledge the Petition s statement in mitigation that the Respondent has taken full responsibility for his misconduct and has demonstrated remorse, which was also apparent to us at the limited hearing. The Hearing Committee also finds highly significant the fact that the Client is satisfied with the outcome of this matter. Indeed, the Client has even hired the Respondent back as its lawyer on subsequent matters a highly unusual situation, and a clear mitigating factor. We recognize and acknowledge that the precedent cited by Bar Counsel could call for a higher sanction than the un-stayed 30 days of suspension being recommended here. In In re Bikoff, 784 A.2d 915 (D.C. 1995), for example, a 60-day suspension was approved in a case that all parties acknowledge has circumstances somewhat similar to those presented here. The Hearing Committee critically explored the Bikoff decision, and how its 60-day suspension could be reconciled with the instant case, given that it might be argued that Bikoff involved less egregious facts than here. For example, the facts of Bikoff appear to have involved a mere misclassification of expenses rightly earned, as opposed to the clear attempt here to bill a client for fees never owed. Also noteworthy is the fact that the Bikoff decision seemed to represent an effort by the D.C. Court of Appeals to send a message to the bar that the issue of client funds is a particularly sensitive area of professional conduct warranting scrupulous care, and that lawyers should know that the Court will not condone such conduct and even endeavor to stamp it out, with the Court of Appeals noting that it will not hesitate to recommend substantially more severe sanctions than we do here in the future. 12

13 While this Hearing Committee would certainly also approve a 60-day suspension in the instant case, as was imposed in Bikoff that is not the issue before us. The only question here is whether the agreed-upon sanction is adequately justified, based on what we are presented. We find that it is. The agreed-upon period of suspension is actually one of 90 days, with all but 30 days stayed, as opposed to the straight 60-day suspension that was at issue in Bikoff. Bar Counsel has not sought to minimize the fact that this was a serious violation of the Rules of Professional Conduct, Tr. at 48-49, but it has explained that the agreed-upon sanction reflects, the 90 days reflects, that we think it was more serious than Bickoff [sic]. Tr. at 48. More importantly, there are also distinctions between Bikoff and the instant case, which were discussed at the limited hearing, that on other levels may make this case less egregious than the facts described in Bikoff. As noted by Respondent s counsel, in Bickoff [sic] there was an intentional conduct on the part of the attorney to deceive the client in a way that the client would not be able to detect, as opposed to here, where there was not a well thought-out complex scheme. Tr. at 45; see also Tr. at 48 (Bar Counsel agrees that, in Bikoff the attorney had attempted to disguise his bills in a way that he would not be detected. ). In Bikoff too, there was $104,000 that was in dispute, and here we have 20 percent of that. Tr. at 44; see also id. at 48 (Bar Counsel agrees, and also notes that the Bikoff misconduct took place over a period of four years ). As Bar Counsel cogently noted, there is a range of sanctions in these matters. These cases are all sui generis. You are never going to find two cases exactly alike. Tr. at 47. And, of course, Bikoff was not a negotiated discipline case. There was certainly no indication in Bikoff that the client had expressed its comfort with the disciplinary result, as here, or that the aggrieved client had taken what can only be described as a fairly unusual and mitigating step of rehiring the same counsel that had committed such wrongs against it. We also are not unmindful of the fact that the Respondent is 73 years old, and that this matter has 13

14 apparently been pending since he self-reported his conduct in Bar Counsel advises that this negotiated discipline will obviate the need for a variety of levels of presentation of evidence and review, and that as a result, what might be three- to five-year process may be reduced to a couple of months. It saves the resources of Bar Counsel, the Board and the Court. Tr. at While this last factor alone would certainly not justify this Hearing Committee approving an unjust sanction, these practical realities when combined with the various other mitigating factors discussed above lead us to the conclusion that the agreed-upon negotiated discipline should be approved. Bikoff described by Bar Counsel as probably the closest case factually, Tr. at 51 and the other cited cases have been adequately distinguished. Several of those cases involve 30-day suspensions, and as Bar Counsel explains, Bikoff s comment suggesting higher punishments in the future was issued in 1995, yet it has not prevented the Court of Appeals from imposing 30-day suspensions in other cases involving dishonesty in billing, including in cases that may have involved more egregious conduct. Tr. at 48; Petition at p.8. The recommended sanction also appears consistent with other relevant precedent. In In re Scanio, 919 A.2d 1137 (D.C. 2007), for example, the Court of Appeals rejected a public censure and imposed a 30-day suspension where the respondent misrepresented his salary in negotiations with an insurance company and then lied to his employer about those misrepresentations. The misconduct here is more aggravated than Scanio in certain respects since Scanio did not involve client funds or arguably even Mr. Scanio s conduct as a lawyer. On the other hand, this case involves mitigating factors wholly absent from Scanio since Mr. Scanio s dishonesty was undoubtedly designed to enrich himself, he did not self-report his misconduct, and he lacked Respondent s many decades of unblemished conduct as a lawyer. 3 Scanio also essentially involved a cover-up, with Scanio submitting a series of blatant lies in 3 Scanio s conduct occurred approximately eight years after he was admitted to the D.C. Bar. 14

15 his explanation of events provided to his law firm which the Court of Appeals essentially considered a second victim. Stated simply, we do not believe that Respondent s admitted misconduct, toward the end of a long career, and involving only one victim, somehow clearly requires more discipline than the sanction meted out to the unrepentant Mr. Scanio particularly since here, the victim client has actually rehired Respondent, and Respondent (unlike Mr. Scanio) is foregoing a full disciplinary hearing. Two older cases are also reconcilable with the sanction recommended here. In In re Schneider, 553 A.2d 206 (D.C. 1989), Mr. Schneider had altered eight credit card receipts submitted through his law firm to a client for reimbursement, by placing a 1 before each actual charge; he asserted his personal belief that he was actually entitled to this money for other travel expenses that he had incurred but for which he lacked receipts. Two of the three judges approved a 30-day suspension, while a dissenting judge suggested a mere public censure. Many of the same distinctions from Scanio, noted above, apply equally to Schneider; both aggravating and mitigating distinctions exist. The same can be said about In re Kennedy, 542 A.2d 1225 (D.C. 1988), in which the Court of Appeals imposed a higher sanction of a 90-day suspension, but on a lawyer who had committed multiple violations, including practicing law while suspended, failing to remit to his law firm a retainer received from a firm client, instructing another client to send payment to his new law office address, and lying about his income on a loan application. At the end of the day, what the Schneider majority stated in its opinion ultimately rings true: When all is said and done, comparisons between cases are inexact at best, and every case must turn on its own particular facts. 553 A.2d at 212 (citations omitted). Although not discussed at the limited hearing, the Hearing Committee has also considered two very recent decisions handed down by the Court of Appeals and the Board on Professional Responsibility, respectively, in separate disciplinary cases decided since the Petition 15

16 for Negotiated Discipline was filed in this case: See In re Harris-Lindsey, No. 09-BG-946 (D.C. May 19, 2011) and In re Fitzgerald, Board Docket No. 11-ND-001 (BPR July 29, 2011). The Hearing Committee does not find either of these recent decisions comparable to the instant proceeding. Harris-Lindsey involved misappropriation under Rule 1.15(a), by a lawyer who continued to take funds from an estate even after being advised by court officials that she needed court approval and was admonished not to expend funds; she ultimately was unable to repay funds improperly taken out of the estate. Although Rule 8.4(c) was listed as an additional charge in Harris-Lindsey, the primary focus of that case was on Rule 1.15(a), and whether Harris-Lindsey s misappropriation was the result of mere negligence, or recklessness since reckless misappropriation carries a presumption of disbarment. The Court rejected the negotiated discipline because the record was insufficient to permit a satisfactory determination of respondent s culpability.... Harris-Lindsey, slip. op. at 3. Here, Respondent has admitted that his misconduct was intentional. This case, however, does not involve misappropriation 4 and there is no presumption of disbarment in our jurisdiction for intentional dishonesty. See In re Guberman, 978 A.2d 200, (D.C. 2009) (quoting In re Pennington, 921 A.2d 135, 141 (D.C. 2007)). While the Court has imposed disbarment in cases involving fraud or intentional dishonesty for personal gain, see, e.g., In re Appler, 669 A.2d 731 (D.C. 1995) and In re Casalino, 697 A.2d 11 (D.C. 1997), Bar Counsel has conceded (and our review confirms) that there is no evidence at all of any personal gain by the Respondent. The need for explicit factfinding on the issue of intent, so crucial in Harris-Lindsey in order to validate the finding of negligence and eliminate recklessness and its presumption of disbarment, is not so crucial in this case. 4 Bar Counsel has explicitly conceded that he lacks sufficient evidence to charge anything other than a Rule 8.4(c) violation here. 16

17 Similarly, in Fitzgerald, the respondent had committed other serious acts of misconduct facing not just a Rule 8.4(c) violation, but six charges and five violations, based on a failure to turn over records in a criminal case despite repeated requests from counsel and even a court order to do so; moreover, the respondent was unresponsive to a Bar complaint, and even made three false statements in response to a motion to compel filed by Bar Counsel. The petition in that case gave the impression that the respondent had fabricated a story about his wife being shot and critically wounded to explain his failure to turn over records, when in fact Fitzgerald s wife had been shot and seriously wounded during the period in question. The Board recommended rejection of the negotiated discipline, finding that Bar Counsel must develop all of the facts that could reasonably be viewed as material to the sanction, so that the Court has before it the information necessary for an informed judgment about the appropriateness of the agreed sanction. Fitzgerald, Board Report at 5-6 (emphasis in original). Here, we believe this has been done. Respondent has explained in considerable detail why he committed these acts. During its investigation, Bar Counsel found no evidence to the contrary. Respondent swore under oath that he did all this without seeking personal gain, and there is no reason (and no evidence) to dispute this testimony. Bar Counsel specifically noted that he explored that question extensively with the law firm, and there was no evidence that he benefitted financially or was going to benefit financially prospectively as a result of the billing in this particular case. Tr. at 53. And the random, inconsistent nature of the billing changes and the unsophisticated manner in which they were performed render Respondent s explanations not only unrebutted, but also intellectually plausible. They constitute the best evidence of why this misconduct occurred. Considering the totality of circumstances, and after examining both the facts and the law, we find the proposed sanction to be justified, and recommend that the Petition for Negotiated Discipline be approved. 17

18 IV. Conclusion and Recommendation It is the conclusion of the Hearing Committee that the discipline negotiated in this matter is appropriate. For the reasons stated above, it is the recommendation of this Hearing Committee that the negotiated discipline be approved and that the Court suspend the Respondent from the practice of law for a period of 90 days, with all but 30 days stayed, followed by two years of probation, during which time Respondent must not be found to have violated any Rules of Professional Conduct. AD HOC HEARING COMMITTEE /GSS/ Gregory S. Smith, Esq. Chair /LI/ Lula Ivey Public Member /BB/ Blanche Bruce, Esq. Attorney Member Dated: August 18,