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: : : PARIS A. ARTIS, : Bar Docket No : Respondent. : REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes to the Board on Professional Responsibility ( Board ) on review of the Report and Recommendation of Hearing Committee Number Seven ( Hearing Committee ), which concluded that Respondent had violated D.C. Rule of Professional Conduct ( Rule ) 8.4(d)(conduct that seriously interferes with the administration of justice) and D.C. Bar R. XI ( Rule XI ), 2(b)(3) (failure to comply with an order of the Board or the D.C. Court of Appeals ( Court )) during the course of a Bar Counsel investigation of a report by the Auditor-Master indicating possible misconduct by Respondent in a probate matter. Respondent was charged with failing to respond to written questions posed by Bar Counsel and a subpoena duces tecum that were included in a followup letter of inquiry to Respondent; failing to abide by an order of the Board compelling a substantive response to Bar Counsel s six written questions; and failing to comply with the Court s order enforcing Bar Counsel s subpoena duces tecum. The Hearing Committee found that Respondent s consistent failures to cooperate with Bar Counsel s investigation significantly hampered that investigation and therefore are violations of Rule 8.4(d). The Hearing Committee also found that Respondent s failures to obey the orders of the Board and of the Court are violations of Rule XI, 2(b)(3). Based on these violations, the Hearing Committee recommended a 30-day suspension with reinstatement conditioned on proof of fitness to practice law, the provision of substantive responses to Bar Counsel s questions, and the production of the documents named in the subpoena duces tecum. Neither Bar Counsel nor Respondent has excepted to the Hearing Committee s report.

2 Having reviewed the record, the Board concurs with the Hearing Committee s conclusion that Respondent violated Rule XI, 2(b)(3) by failing to respond to orders of the Board and the Court. The Board also concurs with the Hearing Committee s conclusion that Respondent s failure to respond to Bar Counsel s questions and the subpoena duces tecum after he was compelled to do so by the Board significantly hampered Bar Counsel s investigation and therefore violated Rule 8.4(d). However, for reasons that are set out in greater detail below, the Board does not accept the Hearing Committee s conclusion that Respondent also violated Rule 8.4(d) by failing to provide a substantive response to Bar Counsel s initial letter of inquiry. We conclude that Respondent provided a response to Bar Counsel s initial inquiry that met the requirements under our case law of an adequate general denial of the apparent underlying allegations of the Auditor-Master s report. The Board agrees with the Hearing Committee that a 30-day suspension is appropriate for the Rule 8.4(d) and Rule XI, 2(b)(3) violations with reinstatement conditioned on Respondent s compliance with Bar Counsel s subpoena duces tecum. Having concluded that Respondent offered a general denial to Bar Counsel s initial letter of inquiry, we decline to recommend that Respondent s reinstatement also be conditioned on a response to Bar Counsel s questions. 1 Finally, the Board concludes that a showing of fitness is inconsistent with prior cases, and we decline to recommend its imposition on the record before us. Procedural History An evidentiary hearing was held on May 16, 2000, before Hearing Committee Number Seven, composed of John H. Schafer, Esquire (Chair), Brenda V. Smith, Esquire, and Dr. Edward M. Kaitz, Public Member. 1 We recognize that the Board, acting through its Vice Chair, issued an order compelling a response by Respondent to Bar Counsel s written inquiries. The Board s order stated that if Respondent failed or refused to respond within the stated time, Bar Counsel shall consider whether Respondent s conduct constitutes, inter alia, conduct that seriously interferes with the administration of justice in violation of Rule 8.4(d). Bar Counsel s Exhibit ( BX ) 6b at 3. As reflected in this Report, the full Board has now considered whether Respondent s failure to provide substantive responses to the detailed written inquires posed by Bar Counsel should be considered a violation of Rule 8.4(d) and if so, whether responses to the questions should be required as a condition of reinstatement, given all of the facts and circumstances. 2

3 Bar Counsel called two witnesses, Debbie Wade, a legal secretary with the Office of Bar Counsel, and Freeman Woodbury, a process server, and one rebuttal witness, Donna DeSilva, a former Assistant Bar Counsel. Bar Counsel offered and the Hearing Committee admitted Exhibits A-D and Transcript ( Tr. ) at 48, 107. On May 17, 2000, pursuant to Board Rule 12.1, Bar Counsel offered BX 11, serving Respondent by mail. This exhibit also was admitted. Bar Counsel filed Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Discipline on June 9, Respondent filed no answer to the Specification of Charges. He appeared pro se at the hearing, and testified on his own behalf. He offered no exhibits and called no witnesses. Respondent did not file a post-hearing brief. 2 Findings of Fact The Board has adopted the proposed findings of fact of the Hearing Committee that are supported by substantial evidence in the record. The Board has also included some additional findings of fact that are supported by clear and convincing evidence and that take into account undisputed facts that were either overlooked or not fully considered by the Hearing Committee. See Board Rule Respondent was admitted to the District of Columbia Bar on December 17, 1973, and assigned Bar Number BX A. 2. Bar Counsel initiated an investigation of Respondent after receiving a copy of a report by an Auditor-Master dated April 3, 1998 in a matter styled Estate of Harold 0. Butler, Admin. No (D.C. Super. Ct., Probate Div.). Tr. at 73 (De Silva); BX 1. Respondent served as counsel for the removed personal representative, Roland Butler, in that matter. 2 Respondent asked that counsel be appointed for him and informed the Hearing Committee that he was unable to file a brief without assistance. Tr. at (Artis). Respondent testified that he had previously sought to have counsel appointed for him. Tr. at 58, (Artis). However, the record of this case shows that Respondent did not respond to the May 26, 2000 letter of the Board s Executive Attorney informing him of the steps necessary to perfect an application for appointment of counsel. See HC Report at 2 n.1. 3

4 3. The Auditor-Master s report questioned whether a deed, dated October 18, 1989, transferring the decedent s interest in certain real property located in the District of Columbia to Roland Butler and British Gary, constituted a fraudulent conveyance seeking to defeat the claims of decedent s creditors. BX 1 at 8 n.2. Respondent notarized the deed for the decedent and Roland Butler, both of whom he said appeared before him. 4. The Auditor-Master s report also stated that statements made by several parties [in the probate matter] raise significant questions about other aspects of the deed transaction which may warrant action by Bar Counsel. Id. 5. By letter dated April 15, 1998, Bar Counsel notified Respondent that the matter had been docketed for formal inquiry, supplied him with a copy of the Auditor-Master s report, and requested a substantive response to the allegations of misconduct contained in the report. Id. at 1-2. Respondent received this letter. See BX 3. Bar Counsel s letter did not identify the alleged misconduct nor did it make reference to specific portions of the Auditor-Master s report. 6. There being no response, by letter dated April 29, 1998, Bar Counsel wrote Respondent at the same address informing him of his responsibility to supply the Office of Bar Counsel with a written statement of the facts material to the matters contained in the Auditor- Master s report and warning him that failure to do so might result in a formal charge of failure to cooperate with Bar Counsel. BX 2. A response was required five days from the date of the letter. Id. Respondent did not deny receipt of this letter. The letter was mailed in the ordinary course of business, BX 9, and receipt is presumed. 7. By letter dated April 29, 1998, Respondent advised Bar Counsel that the Auditor- Master s report contained no allegation of misconduct, only a confused question as whether the October 18, 1989 Deed represents a fraudulent conveyance. BX 3. Respondent further stated that he did not understand the other significant questions [referenced in the Auditor-Master s report] since I advised that I notarized the deed for Mr. Harold Butler [the decedent] and Roland Butler [the removed personal representative] who both appeared before me. I advised that I did not have any 4

5 recollection as to Ms. Gary s signature, but that I believe the deed and the FP5 and FP7 were taken by Mr. Roland Butler to her for signature. I also explained that this was probably why the deed was not recorded. Id. 8. Respondent went on to state in his April 29, 1998 letter to Bar Counsel that he was quite appalled that the auditor master made such a reckless accusation based upon questions by Mr. Butler s successor personal representative, who seemingly relinquished his position after I explained his searching and unknowing inquiries. I am not surprised by such natural suspicions and accusations, but do not choose to practice law defending unfounded queries. Id. Respondent concluded his letter by stating that [i]f any further response is deemed, please provide me with a detailed statement and specific accusations of misconduct. Id. 9. Bar Counsel responded to Respondent by letter dated May 19, BX 4. Bar Counsel s letter stated that the allegations contained in the Report of the Auditor-Master speak for themselves. By reference from the Auditor-Master, this office is now investigating the facts involved in your representation of Roland T. Butler with respect to his father s estate. Id. at 1. This letter then posed the following specific questions relating to the matters charged in the Auditor- Master s report: (1) Did you request [sic] at any time represent British Gary and/or Harold O. Butler? If so, explain in detail including time periods, the matters and basis of representation? (2) What were the circumstances of the conveyance of property by Harold O. Butler to Roland T. Butler and British Gary? Did you prepare the deed that you notarized? Was compensation paid to Harold Butler by Roland Butler and/or British Gary? Who was your client in connection with this transaction? Were you compensated? By whom? Please explain in detail including time periods of representation. (3) Was Ms. Gary in the room to witness the execution of the deed? If not, then 5

6 why did you prepare the deed to state such? (4) What were the circumstances of the $7, mortgage mentioned in the Report of the Auditor-Master on page 6, footnote 2? Who were the parties to this transaction, when did it take place, and who authorized the transaction? Please explain in detail. (5) What were the circumstances of the second trust to Mortgage Savers, Inc.;... dated September 1, 1989? Who were the parties to this transaction, when did it take place and who authorized the transaction? Why was there a delay in recording the second trust? Please explain in detail. (6) Please explain your conduct in connection with the $7,500 mortgage and the second trust in light of the D.C. Rules of Professional Conduct in particular Rules 1.7(b)(4) and 1.8(a). Id. at Bar Counsel enclosed a subpoena duces tecum with her May 19, 1998 letter seeking (A) All documents related to the $7, mortgage loan being held against the estate of Harold O. Butler[,] (B) All documents related to the trust to Mortgage Savers, Inc., dated September 1, 1989, which is being held against the estate of Harold O. Butler [, and] (C) Any and all retainer agreements, records of compensation, billing records, and copies of checks received in compensation from Harold O. Butler, Roland Butler and/or British Gary? Id. at 3-4. Responses to both the letter of inquiry and the enclosed subpoena duces tecum were required by June 4, Id. at 1, 3. Service was by messenger, regular mail, and certified mail. Tr. at 22 (Wade). Page 5 of BX 4 is a signed receipt of the certified mail package showing May 21, 1998 as the date of delivery. Respondent did not respond to this letter. Tr. at (Artis). 11. On June 10, 1998, Bar Counsel wrote Respondent requesting an immediate response to the letter of May 19, 1998 and warned of a formal charge of failure to cooperate with the Bar Counsel if no response was forthcoming. BX 5. Respondent did not deny receipt of this letter, and its receipt is also presumed. 12. On June 25, 1998, Bar Counsel filed a motion with the Board to compel a substantive response to Bar Counsel s written inquiries of May 19, BX 6a. Service on Respondent was by mail. Id. at 6. Respondent did not respond to the motion. By Amended Order dated May 26, 6

7 1999, the Board ordered Respondent to provide substantive answers to each allegation set forth in Bar Counsel s complaint, including the Auditor-Master s report, and to the six sets of questions posed to Respondent in Bar Counsel s letter of May 19, 1998 within ten days. BX 6b. The Board further ordered that, if Respondent failed or refused to respond within the stated time, Bar Counsel shall consider whether Respondent s conduct constitutes, inter alia, conduct that seriously interferes with the administration of justice in violation of Rule 8.4(d). Id. at 2. Respondent has not complied with this order. Tr. at 29 (Wade); BX On June 23, 1998, Bar Counsel also initiated enforcement proceedings in the Court with respect to Respondent s failure to comply with Bar Counsel s subpoena duces tecum. BX 7a. Service of Bar Counsel s motion to enforce subpoena was by mail. Id. at 4. Respondent did not respond to this motion. Tr. at 27 (Wade). The Court issued an order on July 9, 1998, requiring Respondent to comply with the subpoena within ten days of the date of the order. BX 7b. Respondent has not complied with this order. Tr. at 29 (Wade) BX Respondent was personally served with the orders of the Court and the Board, and with Bar Counsel s motion to enforce its subpoena, on March 21, Tr. at 42 (Woodbury); BX Respondent testified that he met with the former Assistant Bar Counsel and provided her with some documents that he thought included some of the requested materials. Tr. at (Artis). 16. The former Assistant Bar Counsel testified that she met with Respondent and received documents from him, but she noted that the meeting took place in January or February 1998, before the start of this proceeding, and she testified that the documents produced by Respondent were related to another proceeding, and were not related to the subpoena or the questions posed in Bar Counsel s second inquiry in this proceeding. Tr. at 79, (DeSilva). 7

8 17. Respondent asserted that the nature of the allegation made by the Auditor-Master s report, when combined with the nature of the Assistant Bar Counsel s inquiries raised questions about self-incrimination. Tr. at (Artis). Conclusions of Law A. Rule 8.4(d) Violation Bar Counsel alleged, and the Hearing Committee found, that Respondent violated Rule 8.4(d) by failing to respond to Bar Counsel s May 19, 1998 inquiries, Bar Counsel s subpoena duces tecum, the Board s Amended Order dated May 26, 1999, and the Court s July 9, 1998 order enforcing the subpoena duces tecum. The Hearing Committee also found that Respondent violated Rule 8.4(d) by his failure to provide a substantive response to Bar Counsel s initial inquiry of April 15, Respondent has not excepted to these findings by the Hearing Committee. 1. Failure to Comply with Bar Counsel s Subpoena Duces Tecum, the Board s Amended Order and the Court s Enforcement Order We agree with the Hearing Committee s conclusion that Respondent s failure to respond to Bar Counsel s subpoena duces tecum, the Board s Amended Order dated May 26, 1999, compelling a response to Bar Counsel s inquiries and the Court s enforcement order for the subpoena duces tecum dated July 9, 1998, when taken together, was conduct that violated Rule 8.4(d). Comment [3] to Rule 8.4(d) states: A lawyer s failure to respond to Bar Counsel s inquiries or subpoenas duces tecum may constitute misconduct. Comment [3], Rule 8.4(d) (citations omitted) (emphasis added). The Court has held that a respondent s failure to produce documents in response to a subpoena from Bar Counsel is a Rule 8.4(d) violation. See In re Cope, Bar Docket Nos , (BPR Dec. 11, 1980), aff d and adopted, No. M (D.C. Nov. 16, 1983) (where the respondent violated DR 1-102(A)(5), the predecessor to Rule 8.4(d), by failing to produce documents in response to Bar Counsel subpoena). Similarly, the Court has held that a respondent s failure to respond to an order of the Board or an order of the Court can result in a Rule 8.4(d) violation. See, e.g., In re Giles, 741 A.2d 1062 (D.C. 1999) (per curiam). 8

9 There is clear and convincing evidence that Respondent did not respond to Bar Counsel s subpoena duces tecum, or to the orders of the Board and the Court that sought to enforce compliance. When an attorney declines or fails to respond to a subpoena from Bar Counsel, Bar Counsel s remedy is to turn to the Court for enforcement of the subpoena. Where Bar Counsel has exercised that enforcement procedure, and the respondent fails to comply with a Court order compelling compliance with the subpoena, the respondent s conduct with respect to Bar Counsel s subpoena clearly constitutes a violation of Rule 8.4(d). 3 That is the fact pattern before us, and we conclude that Bar Counsel has proven a violation of Rule 8.4(d) here by clear and convincing evidence. 2. Failure to respond to Bar Counsel s initial inquiry about the Auditor-Master s report. Although Bar Counsel did not charge Respondent with failing to respond to her initial inquiry letter as part of the Rule 8.4(d) violation, the Hearing Committee looked at the April 29, 1998 letter filed in response by Respondent and concluded that it was not a general denial; rather it was simply a statement that there will be no substantive response to Bar Counsel s requests. H.C. Rpt. at 5 n.2. It appears from its report that the Hearing Committee included this conduct as part of its proof that Respondent had failed to provide a substantive response to Bar Counsel s inquiry in violation of Rule 8.4(d). Id. Respondent acknowledges that he did not make a filing in response to the Board s May 26, 1999 Amended Order, but he argues that the response that he filed with Bar Counsel on April 29, 1998 was a response in the form of a general denial to Bar Counsel s inquiry of April 15, Additionally, Respondent argues that there were no specific allegations set forth in the Bar Counsel s letter that required an additional response. 3 Respondent ignored Bar Counsel s subpoena after it was enforced by an order of the Court. In the Board s view, this attorney conduct is different from an attorney s failure to respond to a subpoena issued by Bar Counsel without an order enforced by the court. The former, standing alone, is attorney misconduct that clearly violates Rule 8.4(d); the latter, standing alone, would need more to establish a Rule 8.4(d) violation. 9

10 We agree with Respondent that Bar Counsel s letter of April 15, 1998 notifying him of its inquiry did not contain specific allegations of misconduct nor did it direct Respondent to respond to specific sections of the Auditor-Master s report where allegations of misconduct were alleged. Given the lack of specificity in Bar Counsel s inquiry, we find that Respondent s letter of April 29, 1998 provided what can fairly be characterized under the case law as a general denial of the allegations in the Auditor-Master s report. Under cases decided by the Board, a response to Bar Counsel s inquiries need not specifically address the details of the complaint. A general denial is sufficient for a respondent to satisfy his obligations under Rule 8.4(d). See In re Confidential (MJM), Bar Docket No , at 19 (BPR Nov. 8, 1991) (where the respondent s handwritten letter to Bar Counsel advising that complaint against him received from the Public Defender s office contained information that is not accurate or complete... clearly evidences what may be termed a general denial to all charges. This is sufficient and cannot be used as a basis for this disciplinary violation. ) (Attachment A); see also In re Confidential (NHS), Bar Docket No (BPR Dec. 19, 1996) (citing Confidential (MJM) and holding that the respondent s general denial precludes order to compel response) (Attachment B). In both Confidential (MJM) and Confidential (NHS), the respondents had provided responses to Bar Counsel s inquiries that Bar Counsel had deemed unsatisfactory. See Confidential (MJM) at 18; Confidential (NHS) at 3. In Confidential (MJM), the Board held that Bar Counsel had failed to prove a violation of DR 1-102(A)(5), the predecessor to Rule 8.4(d), because the respondent had in fact said something about the underlying allegations of misconduct, albeit only in general terms. 4 See Confidential (MJM) at One member filed a vigorous dissent in which he concluded that the respondent had failed to cooperate with Bar Counsel when he did not respond to his legitimate inquires and thereby violated DR 1-102(A)(5). The respondent had missed four deadlines, filed an inadequate and cryptic response with the unfulfilled promise of more details to be supplied later and then failed to file the promised information. Confidential (MJM), Dissent at 6. 10

11 The first paragraph of Respondent s April 29, 1998 letter states that the Auditor-Master s report contains no allegation of misconduct, but instead only raises a confused question as to whether the October 18, 1989 Deed represents a fraudulent conveyance. BX 3. If Respondent s letter to Bar Counsel had ended there, we might be presented with a closer case. But the letter continues, characterizing the Auditor-Master s accusations as reckless, and the queries of the successor personal representative as unfounded. Merriam-Webster s Dictionary defines the term reckless as irresponsible and the term unfounded as lacking a sound basis: groundless, unwarranted. Respondent s use of these terms to describe matters raised in the Auditor-Master s report brings the content of his letter within the criteria of a general denial sanctioned by the case law in this jurisdiction. Finally, Respondent s April 29, 1998 letter advises that he notarized the deed for Mr. Harold Butler and Roland Butler who both appeared before me, and he offers an explanation for why the deed was not recorded another question raised by the Auditor-Master s report. Based on the case law, we conclude that Respondent provided a general denial to Bar Counsel s initial inquiry. Accordingly, we do not agree with the Hearing Committee that Respondent s failure to respond to Bar Counsel s initial inquiry ought to be considered as part of the conduct that resulted in a violation of Rule 8.4(d). 3. Failure to respond to Bar Counsel s six sets of written questions. Bar Counsel urged, and the Hearing Committee found, that Respondent violated Rule 8.4(d) when he failed to respond to the six sets of written questions in Bar Counsel s May 19, 1998 letter. In making this finding, the Hearing Committee did not accept Respondent s argument that he had a right not to incriminate himself in response to any Bar Counsel inquiry. Tr. at (Artis). It is clear from the Comment to Rule 8.4(d), from the text of Rule XI, 8(a), and from the case law that there are some written inquiries to which a respondent must respond and that a respondent who declines to provide any answer to some of the inquiries of Bar Counsel may be subject to some form of discipline. See Comment [3] to Rule 8.4(d)( A lawyer s failure to respond 11

12 to Bar Counsel s inquiries or subpoenas may constitute misconduct. )(emphasis added); In re Jones, 521 A.2d 1119 (D.C. 1986). At the same time, Rule XI, 8(a) makes it clear that there are some limitations on Bar Counsel s ability to pose written inquiries to respondents during the course of an investigation. See Rule XI, 8(a)( An attorney under investigation has an obligation to respond to Bar Counsel s written inquiries in the conduct of an investigation, subject to constitutional limitations. In the event of an attorney s failure to respond to such an inquiry, Bar Counsel may request the Board to enter an appropriate order. ). As we noted in Confidential (NHS), a respondent is not required to make Bar Counsel s case for him or her. See Confidential (NHS) at 2. We have considered whether Respondent s failure to respond to Bar Counsel s six sets of written questions, standing alone, constitutes a Rule 8.4(d) violation, given the facts of this case. The record shows that Respondent filed his general denial to Bar Counsel s initial inquiry in writing on April 29, In his letter, he stated [i]f any further response is deemed, please provide me with a detailed statement and specific accusations of misconduct. BX 3. In response to this invitation, Bar Counsel posed the six sets of questions that Respondent then refused to answer. When Respondent did not answer the questions, Bar Counsel sought the assistance of the Board in the form of a motion to compel a response. Respondent did not respond to Bar Counsel s motion or otherwise indicate any reason why the motion should not be granted. The Board, acting through its Vice Chair, granted Bar Counsel s motion and compelled Respondent to provide a response, warning that if he failed or refused to respond, Bar Counsel shall consider whether Respondent s conduct constitutes, inter alia, conduct that seriously interferes with the administration of justice in violation of Rule 8.4(d). BX 6b at 3. Once Bar Counsel s motion to compel was granted by the Board, Respondent had two permissible options: he could comply with the Board s order and file some type of response with Bar Counsel or he could object to the Board order in writing and preserve the issue for further 12

13 review under Rule XI, 2(c). 5 Respondent did not pursue either permissible option. Instead, he chose to ignore an order of the Board and do nothing. By doing nothing, he violated the Board s order and Rule XI, 2(b)(3), for reasons that we discuss in greater detail, infra. The harder question is whether his actions also constituted conduct that seriously interferes with the administration of justice in violation of Rule 8.4(d). Rule XI, 8(b) imposes on Respondent some obligation to respond to Bar Counsel inquiries, but it makes that obligation subject to constitutional limitations. If Respondent had raised the concern of self-incrimination that he raised to the Hearing Committee when Bar Counsel s motion to compel was first pending before the Board, i.e., if he had argued that some or all of Bar Counsel s inquiries required him to incriminate himself after he had denied the general allegations and therefore were unconstitutional or otherwise improper, the Board may have issued a different order. But Respondent chose not to respond to Bar Counsel s motion. Respondent also could have raised his concerns about Bar Counsel s inquiries after the Board issued its Amended Order directing him to respond to Bar Counsel s questions. The Board, in its Amended Order, did not direct or limit the type of response that Respondent could make in response to Bar Counsel s inquiries. Thus, Respondent still had the opportunity to file a response that raised the issue of whether Bar Counsel s questions sought information within constitutional limitations; but once again he chose to do nothing. 5 Rule XI, 2(c) states: (c) Review of Board Orders and Inquiries If an attorney objects in writing to an order or written inquiry of the Board, the objection shall be noted, but review of the order or inquiry shall not be available (except as provided in section 18(c) with respect to subpoenas) until all proceedings before the Board have been concluded. If the Board imposes or recommends the imposition of a disciplinary sanction, the attorney may then seek review of the previously challenged order or inquiry by filing an appropriate motion or pleading with the Court. If the order or inquiry is reversed, vacated, or set aside by the Court, failure to comply with the order or to respond to the inquiry shall not be a ground for discipline. If the order or inquiry is modified by the Court, failure to comply with the order or to respond to the inquiry may be a ground for discipline only to the extent that the order or inquiry is not modified. 13

14 Under our case law, a respondent who fails to respond to written inquiries of Bar Counsel, fails to respond to Bar Counsel s motion to compel, and fails to respond to a Board s order directing a response to Bar Counsel s inquiries violates Rule 8.4(d). Giles, 741 A.2d at We conclude that Respondent s decision to sit silent and to decline to respond in any manner to Bar Counsel s inquiries, to Bar Counsel s motion to compel a response to those inquiries, and to the Board s Amended Order to provide some type of response to the inquiries, taken as a whole, constitutes conduct in violation of Rule 8.4(d). The fact that Respondent had filed a general denial to the allegations in Bar Counsel s first letter of inquiry or his unarticulated feelings that filing a response would violate his right against self-incrimination did not relieve him of the obligation to file some type of response to Bar Counsel, especially after being compelled to do so by the Board. Respondent s conduct, taken as a whole, seriously interfered with the administration of justice and delayed Bar Counsel s disciplinary investigation. B. Rule XI, 2(b)(3) Bar Counsel charged, and the Hearing Committee found, that Respondent violated Rule XI, 2(b)(3) when he failed to respond to the Board s Amended Order and again when he failed to respond to the Court s Order. 6 Our case law is clear that the failure to respond to an order by the Court or the Board is a violation of Rule XI, 2(b)(3). Giles, 741 A.2d at 1062; In re Lockie, 649 A.2d 546, 546 (D.C. 1994) (per curiam). Here there is no dispute about Respondent s failure to respond to the orders of both the Court and the Board. We conclude that Bar Counsel has shown by clear and convincing evidence that Respondent violated Rule XI, 2(b)(3). Recommended Sanction 6 Rule XI, 2(b)(3) states: Any of the following shall also be grounds for discipline...(3) Failure to comply with any order of the Court or the Board issued pursuant to this rule. 14

15 Bar Counsel recommended to the Hearing Committee that Respondent be suspended for 30 days with reinstatement conditioned on his providing substantive responses to Bar Counsel s inquiries and document demands, and demonstration of his proof of fitness to practice law. Respondent made no specific sanction recommendation to the Hearing Committee and testified during the hearing that he intended to just submit, and let, you know, basically suffer the consequences, be disciplined. Tr. at 58 (Artis). The Hearing Committee accepted Bar Counsel s recommendation. Neither Bar Counsel nor Respondent have taken exception to the Hearing Committee s recommendation. We adopt the Hearing Committee s recommendation of a 30- day suspension. A 30-day suspension is consistent with sanctions imposed in comparable cases where respondents have failed to respond to Bar Counsel or to an order of the Board but have participated in disciplinary proceedings based on the failure to cooperate. See, e.g., In re Beller, 802 A.2d 340 (D.C. 2002) (per curiam) (30-day suspension for failure to respond to Bar Counsel and to orders of the Board, where the respondent participated in hearing on failure to cooperate charges); In re Beaman, 775 A.2d 1063 (D.C. 2001) (per curiam) (30-day suspension where the respondent responded to Bar Counsel s inquiries regarding ethical complaints, but only after a specification of charges was filed based on his failure to cooperate). We also adopt the Hearing Committee s recommendation that reinstatement be conditioned on Respondent s compliance with the order of the Court to provide Bar Counsel with the documents listed in the subpoena duces tecum. Bar Counsel s subpoena duces tecum, which seeks, in document form, essentially the same information as her interrogatory-like questions, is the proper procedural vehicle for Bar Counsel s investigative inquiries. See Board Rule If Respondent opposed the subpoena, he could have moved to quash it pursuant to Rule XI, 18(c) and Board Rule He did not do so. Furthermore, he testified during the hearing that he had not been deal[ing] with it [Bar Counsel s inquiries] appropriately. Tr. at 58 (Artis). Under these circumstances, it is appropriate to condition Respondent s reinstatement on full compliance with the Court s order. 15

16 We do not adopt the Hearing Committee s recommendation that reinstatement be conditioned on Respondent s response to the six sets of questions posed by Bar Counsel in her May 19, 1998 letter. Most of the information sought in three of the sets of questions (i.e., Question 1, and parts of Questions 4 and 5 as set out in Finding of Fact 9) can easily be obtained directly from the documents that are covered by Bar Counsel s subpoena duces tecum that has been enforced by the Court. Respondent s reinstatement is conditioned upon his response to the subpoena. We see no need to further condition Respondent s reinstatement upon a response to Question 1 and to parts of Questions 4 and 5 that require Respondent to give information that can be derived from the subpoenaed documents. With respect to the remaining questions, i.e., Questions 2, 3 and 6 and the remaining parts of Questions 4 and 5, we have considered the objection raised by Respondent at the hearing. Specifically, Respondent claimed that some of the information sought by Bar Counsel in its investigative phase requires Respondent to provide responses that could be self-incriminating, both in these proceedings or in a criminal proceeding. 7 The Hearing Committee did not acknowledge in its findings of fact that Respondent raised this argument, nor did it address Respondent s argument in its report. To the extent that the questions asked by Bar Counsel would require Respondent to explain actions that the Auditor-Master had described as a fraudulent conveyance, Respondent had a right to interpose an objection based on constitutional limitations and decline to provide a response. See Rule XI, 8(a). On this basis, we decline to recommend that Questions 2 and 3 be answered as a condition of reinstatement. 7 Bar Counsel asked Respondent about the circumstances of the conveyance of property by Harold Butler to Roland Butler and British Gary and his role in the preparation of the deed that he later notarized (Question 2); whether Ms. Gary was in the room to witness the execution of the deed and if not, why he had prepared the deed to state such (Question 3); about the circumstances of the $7,500 mortgage mentioned in the Report of the Auditor-Master (Question 4); about the circumstances of the second trust to Mortgage Savers, Inc. (Question 5), and to explain [his] conduct in connection with the $7,500 mortgage and the second trust in light of the D.C. Rules of Professional Conduct in particular Rules 1.7(b)(4) and 1.8(a). (Question 6). 16

17 The other questions, i.e., Question 6 and the remaining parts of Questions 4 and 5, ask Respondent to explain the circumstances of his conduct with respect to the $7,500 mortgage and the second trust and to explain his actions in light of the D.C. Rules of Professional Conduct. These questions are vague, overly burdensome and call for legal conclusions. More importantly, these inquiries do not appear to fall within the category of written inquiries in the conduct of an investigation to which an attorney under investigation has an obligation to respond pursuant to Rule XI, 8(a). In Confidential (MJM), the Board concluded [i]f Bar Counsel s multiple, but brief, letters articulated specific questions for Respondent, then we would have a different situation. Confidential (MJM), Board Report at 20. Instead, Bar Counsel s letters merely asked for a response to the allegations, despite the fact that the allegations had already been generally denied by the respondent. Id. A similar situation exists here. Bar Counsel asked Respondent to describe the circumstances of his conduct and to explain his actions in light of the Rules after he generally denied the allegations in the Auditor-Master s report. While the facts show that Bar Counsel s questions were posed in response to an invitation by Respondent, the language of Respondent s letter is instructive. After giving his general denial, Respondent said [i]f any further response is deemed, please provide me with a detailed statement and specific accusations of misconduct. BX 3. Bar Counsel s response did not contain a detailed statement or specific accusations of misconduct. Instead, it called for a number of unduly burdensome responses in the hope that they would support Bar Counsel s investigation. We think this type of broad general inquiry is outside of the scope of the written inquiries anticipated by Rule XI, 8(a). While we are sensitive to Bar Counsel s need to obtain information that will support a complaint and advance its ability to quickly file a petition with specifications of charges, we think Bar Counsel must proceed within the confines of general due process. This is especially true when, as here, the Board s Rules do not provide for a formal discovery process in disciplinary proceed- 17

18 ings. We are concerned that respondents may, in an effort to cooperate with Bar Counsel and without benefit of counsel at the investigative stage, give incomplete information or give accounts that turn out to inaccurately reflect the circumstances surrounding their actions. See In re Austin, Bar Docket No (BPR July 12, 2002) (pending before the Court); In re Mitchell, 727 A.2d 308 (D.C. 1999). Bar Counsel may then argue that these actions in the investigative phase should be a basis for increasing a sanction because they demonstrate that a respondent did not fully cooperate with Bar Counsel. With this in mind, we accordingly are hesitant to recommend that Respondent s reinstatement be conditioned on the filing of responses to the remaining portions of Questions 4 and 5 or to Question 6. Neither does the Board find that the record supports the imposition of the fitness requirement urged by Bar Counsel and recommended by the Hearing Committee. Respondent s general denial and his subsequent participation at the hearing distinguish this case from failure to cooperate cases in which the attorney never cooperates with the disciplinary process or is found to have violated some other ethical rule in addition to his failure to cooperate. Beaman, Bar Docket Nos et al. at 9-10 (BPR Feb. 9, 2001), aff d, 775 A.2d at 1063; see also In re Nielsen, Bar Docket No at 8 (BPR Nov. 8, 2000), aff d, 768 A.2d 41 (D.C. 2001) (per curiam); In re Steinberg, 761 A.2d 279, 284 (D.C. 2000) (per curiam). Proof of fitness has been imposed as a condition of reinstatement in the latter group of cases where the respondent did not participate at all in the disciplinary hearing, see Lockie, 649 A.2d at 546, and/or intentionally evaded service of Bar Counsel s letters of inquiry. In re Delaney, 697 A.2d 1212, 1213 (D.C. 1997) (20 attempts by process servers); In re Smith, 649 A.2d 299 (D.C. 1994) (per curiam) (respondent, previously suspended and reinstated, found to have attempted to deliberately avoid service); Lockie, 649 A.2d at 546 (several attempts by process server; service by publication); In re Siegel, 635 A.2d 345 (D.C. 1993) (per curiam) (several attempts by process servers; respondent found to have deliberately avoided service). 18

19 Respondent, by contrast, did attend the hearing, appearing pro se and testifying before the Hearing Committee. There is no allegation that he attempted to avoid service of papers by Bar Counsel in this matter. Respondent s testimony during the hearing also made it clear that he was attempting to cooperate with Bar Counsel. He testified that he had met with the former Assistant Bar Counsel and provided her with documents that he believed, in part, addressed her inquiries. The former Assistant Bar Counsel acknowledged that the two had met and that Respondent had produced documents; however, she maintained that the documents that were produced did not relate to this matter. While not totally blameless, Respondent engaged in conduct that fell well short of the type of egregious failure to cooperate with the Office of Bar Counsel and th[e] Board that has justified the imposition of a fitness requirement in the past. Lockie, 649 A.2d at 547. Respondent s record of prior discipline a public censure issued 20 years ago for a violation of DR 9-102(B)(3) does not dictate a different result. Conclusion For the foregoing reasons, the Board recommends that the Court find that Respondent violated Rule 8.4(d) and Rule XI, 2(b)(3), by failing to comply with an order of the Board compelling responses to Bar Counsel s written inquiries, and failing to respond to Bar Counsel s subpoena duces tecum and the Court order enforcing the subpoena. The Board recommends that Respondent be suspended from the practice of law for 30 days with his reinstatement conditioned upon his compliance with Bar Counsel s subpoena duces tecum and the Court order enforcing it. BOARD ON PROFESSIONAL RESPONSIBILITY By: Joanne Doddy Fort Chair 19

20 Dated: March 10, 2003 All members of the Board concur in this Report and Recommendation except Mr. Wolfson who has filed a Separate Concurring and Dissenting Statement, with which Mr. Bach joins. 20

21 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY ) In the Matter of ) ) PARIS ARTIS, ) Bar Docket No ) Respondent. ) CONCURRING AND DISSENTING STATEMENT OF MEMBER PAUL R.Q. WOLFSON I agree with the Board insofar as it rules that Respondent did violate Rule 8.4(d) by not responding to the subpoena once it was ordered enforced by the Court, and did not violate Rule 8.4(d) by supposedly failing to respond properly to Bar Counsel s initial inquiry about the Auditor-Master s report. Although, in my opinion, an attorney s failure to respond to an unenforced subpoena issued by Bar Counsel ordinarily will not rise to a Rule 8.4(d) violation, the attorney s failure to comply with that subpoena once it has been enforced by the judicial system is indeed conduct that seriously interferes with the administration of justice. 1 A subpoena is not self-enforcing, and a respondent to a subpoena is entitled to require that the issuing party obtain enforcement from the courts, where the respondent 1 As the Court has noted, the commentary accompanying Rule 8.4 observes that [a] lawyer s failure to respond to Bar Counsel s inquiries or subpoenas may constitute misconduct. (emphasis added). The key word, of course, is may. The commentary does not establish that failure to respond to a subpoena, per se, is misconduct.

22 may make arguments against the validity of the subpoena. Once the courts determine the subpoena is valid, however, compliance must follow to ensure that our system of justice operates properly. If Respondent believed that the subpoena was not valid for some reason, he had the opportunity to present that argument to the Court of Appeals. He did not do so. 2 On the other hand, I also agree with the Board that Respondent s April 29, 1998, letter to Bar Counsel did not violate Rule 8.4(d). As our case law demonstrates, an attorney who is the subject of a complaint of misconduct and who receives a request from Bar Counsel about that complaint is entitled to make a general denial of the charges. See In re Confidential (MJM), Bar Docket No , at (BPR Nov. 8, 1991). Although there was a very able dissent in MJM, I am persuaded that the majority s approach there should be followed. I note that the Board in MJM did not hold that any negative response from a respondent, no matter how curt or cryptic, will be sufficient to constitute a valid general denial. Nor can an attorney ignore Bar Counsel s request for information, or indicate that he will simply refuse to respond to the request. But a response, even if quite brief, that indicates some reason why the facts alleged in the complaint do not constitute misconduct -- because (the respondent argues) the facts did not occur as they are 2 I also concur in the Board s recommended sanction based on that violation. 2

23 recited in the ethical complaint, or because the acts complained of were not improper, or for some other reason -- should be sufficient. As the Board notes, this case, although perhaps close, is on the proper side of the line, and it is certainly more so than was the response that the Board deemed sufficient in MJM. The difficult issue in this case involves Respondent s failure to answer the six sets of written questions that Bar Counsel propounded to him, even after the Board, through its Vice Chair, ordered Respondent to answer those questions. There are four factors that affect the decision whether this failure of Respondent violated Rule 8.4(d): First, even though the Board ordered Respondent to answer Bar Counsel s queries, it is far from clear that Bar Counsel has any authority to demand that Respondent provide an answer to what are, in effect, interrogatories. Rule XI, 8(a), provides: An attorney under investigation has an obligation to respond to Bar Counsel's written inquiries in the conduct of an investigation, subject to constitutional limitations. In the event of an attorney's failure to respond to such an inquiry, Bar Counsel may request the Board to enter an appropriate order. It is commonplace of the Board s practice, of course, that an attorney must provide some answer (even if only a general denial) to Bar Counsel s initial inquiry about an ethical complaint, and the Board frequently enters orders compelling attorneys to do so. See also Rule 8.1(b) (providing that attorney shall not knowingly fail to 3

24 respond reasonably to a lawful demand for information from [a]... disciplinary authority ). But Rule XI does not necessarily establish that Bar Counsel is entitled to take discovery from an attorney by propounding interrogatories. The Board Rules do not provide for such discovery; to the contrary, the only discovery that they authorize (in Chapter 3 of the Board Rules) is discovery from Bar Counsel. See also Rule XI, 8(f) (expressly authorizing such discovery from Bar Counsel). Moreover, although lawyer discipline hearings are not criminal proceedings in which the Fifth Amendment s privilege against self-incrimination applies of its own force, the quasi-penal nature of lawyer discipline proceedings, and the fact that Bar Counsel is obligated to prove its case for discipline by clear and convincing evidence, cast doubt on the notion that Bar Counsel may compel an attorney to provide what would be, in effect, a testimonial response in the nature of an answer to an interrogatory. 3 Second, even if Bar Counsel may propose, and the Board may compel an answer to, some kinds of interrogatories, it is most doubtful that the inquiries Bar Counsel made in this case would fall within the ambit of proper interrogatories. As the Board notes, Bar Counsel s inquiries in this case were burdensome, vague, and confusing. I doubt very much they would be upheld as proper by a court 3 Subpoenas issued by Bar Counsel do not present the same concern because the documents produced in response to a subpoena are generally not themselves testimonial in nature, when they were prepared at an earlier time and voluntarily. See Fisher v. United States, 425 U.S. 391 (1976). 4

25 supervising civil litigation. It is not reasonable for Bar Counsel to demand that an attorney explain [his] conduct in light of certain disciplinary rules, or explain in detail his responses to five other sets of questions, each of which involves openended subquestions. Although disciplinary proceedings are not intended to be as formal as civil litigation, there are limits to that informality, and if Bar Counsel is to propound written questions to an attorney, those questions should be essentially factual and narrowly focused. Third, although the Board earlier ordered Respondent to answer Bar Counsel s questions, there was no mechanism for Respondent to obtain any further review of that order. When an order is entered by the Chair of the Board exercising the delegated authority of the Board, the Board Rules do not provide for an appeal to, or rehearing by, the full Board. Nor, it appears, could Respondent have obtained judicial review of that order at that time. Under Rule XI, 2(c), [i]f an attorney objects in writing to an order or written inquiry of the Board, the objection shall be noted, but review of the order or inquiry shall not be available... until all proceedings before the Board have been concluded. If the Board imposes or recommends the imposition of a disciplinary sanction, the attorney may then seek review of the previously challenged order or inquiry by filing an appropriate motion or pleading with the Court. What this means, as I understand the Rule, is that if an attorney seeks to challenge the validity of a Board order compelling him 5