DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY HEARING COMMITTEE NUMBER ELEVEN

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1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY HEARING COMMITTEE NUMBER ELEVEN In the Matter of: : : ANDRE P. BARBER, : : Respondent. : Board Docket No. 11-BD-068 : Bar Docket No D450 A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION OF HEARING COMMITTEE NUMBER ELEVEN INTRODUCTION AND SUMMARY Bar Counsel has charged Respondent with violating District of Columbia Rules of Professional Conduct Rule 1.4(a), for failing to keep his client reasonably informed about the status of her matter and failing to respond to her reasonable requests for information; Rules 8.1(a), 8.4(c), and 8.4(d) for making false statements to Bar Counsel in the course of the investigation; and Rule 8.4(d) and D.C. Bar Rule XI, 2(b)(3), for failing to cooperate in Bar Counsel s investigation and disobeying the Court order directing him to comply with Bar Counsel s subpoena. For the reasons stated in the following Report, the Hearing Committee recommends that Respondent be suspended for six months with a fitness requirement. PROCEDURAL BACKGROUND In July 2011, Bar Counsel submitted a proposed Specification of Charges against Respondent, which after Contact Member approval, was filed with the Court on October 11, Although Respondent was advised of the Specification of Charges and Bar Counsel s

2 efforts to serve him in October 2011, Bar Counsel was unable to effect service, which necessitated a Court order on December 5, 2011, permitting Bar Counsel to serve Respondent by mail and publication. Instead of filing an Answer, Respondent filed a motion dated December 30, 2011 seeking in the alternative to dismiss or to stay the proceedings. After an agreed extension of time, Bar Counsel opposed the motion and on February 29, 2012 the Chair of Hearing Committee Number 11 ( Chair ) deferred ruling on the motion to dismiss in accordance with Board Rule 7.16(a). A Hearing Committee is not authorized to rule on a motion to dismiss, but instead must include a recommended disposition of the motion in its Report and Recommendation to the Board on Professional Responsibility ( Board ), after hearing all the evidence. See In re Ontell, 593 A.2d 1038 (D.C. 1991). Also on February 29, 2012, pursuant to Board Rule 4.2, the Chair issued a Report and Recommendation that the Board should deny Respondent s motion to stay proceedings. The Board denied Respondent s motion to stay on March 14, The prehearing conference took place on March 1, Respondent called the Board office on the morning of the prehearing conference to state that he was out of town and would like to participate by telephone. The Chair allowed this unorthodox procedure and informed Respondent both of his right to be represented by counsel and that the Board would pay for counsel if Respondent is indigent. Respondent stated that he understood and that he would proceed pro se for the time being. Prehearing transcript 21. When asked by the Chair, Respondent said he would like to file an untimely Answer together with a motion to file out of time. Respondent said he could do this by Monday, March 12, Prehearing transcript 10. In order to give Bar Counsel time to evaluate and, if necessary, respond to the promised Answer, the Hearing was scheduled, with Respondent s full agreement, for April 17, Prehearing 2

3 transcript 12. Witness lists and proposed exhibits were to be filed by April 6, 2012, and the parties were to file bench briefs not to exceed ten pages by April 10, Prehearing transcript Respondent indicated awareness of and agreement to all of the deadlines. These deadlines were memorialized in an Order of the Chair on March 1, 2012, which also provided that objections to proposed exhibits and any stipulations were to be filed by April 13, Respondent never filed the promised Answer or motion. He never filed proposed exhibits or listed any witnesses. He never filed a pre-hearing bench brief. Respondent also failed to appear at the Hearing on April 17, The Hearing took place on April 17, 2012 before John C. Peirce, Esquire, Chair; Twanna R. Price; and, Lucy Pittman, Esquire. Senior Assistant Bar Counsel Julia L. Porter, Esquire, appeared for Bar Counsel. Respondent had been advised of and agreed to the hearing date during the March 1, 2012 pre-hearing conference. The date for the Hearing is also memorialized in a March 1, 2012 order. Respondent did not seek a continuance of the Hearing, or inform the Office of the Executive Attorney that he would be delayed in attending the Hearing. After waiting about 20 minutes in case Respondent was delayed, the Hearing proceeded in Respondent s absence. Tr Bar Counsel called three witnesses: Cynthia Miles, Respondent s former client and the complainant in this matter; Frederick Parsons, a process server whom Bar Counsel retained to serve Respondent with documents; and Idrea Mayfield, a legal secretary employed by Bar Counsel. Bar Counsel also offered BX 1-35, all of which were admitted in evidence. Tr Tr. refers to the transcript of Hearing on April 17, BX refers to Bar Counsel s exhibits, and the page citations are to the Bates numbers on the exhibit. FF refers to numbered Findings of Fact, set forth herein. 3

4 At the end of the Hearing, the Hearing Committee ordered Bar Counsel to file and serve proposed findings of fact and conclusions of law within ten days after receipt of the transcript, ordered Respondent to file and serve a responsive brief within ten days after service of Bar Counsel s brief, and authorized Bar Counsel to file and serve a reply within five business days after service of Respondent s response, with time to be calculated in accordance with Board Rule 12.1(a). Tr Bar Counsel filed and served proposed findings and conclusions and a recommendation as to sanction on May 7, Respondent did not file a timely response to Bar Counsel s May 7 filing. Instead, on May 25, 2012, Respondent lodged with the Board on Professional Responsibility a motion for leave to file an untimely reply to Bar Counsel s May 7 filing, together with the proposed reply. On June 11, 2012, Bar Counsel filed and served a response indicating no opposition to the motion for leave to file an untimely response, and also filed a reply brief. On June 13, 2012, the Chair granted Respondent s motion, accepting the untimely response for filing. FINDINGS OF FACT A. Respondent 1. Respondent is a member of the Bar of the District of Columbia Court of Appeals, having been admitted by motion on February 9, 2001, and subsequently assigned Bar number BX 1. B. Respondent s Representation of Cynthia Miles 2. In or around 2005, Cynthia Miles retained Respondent to represent her in connection with her dispute with Tenacity Group, LLC, and Tenacity 919 L Street, LLC, an affiliate of Tenacity Group, LLC (hereinafter collectively referred to as Tenacity ) concerning her rights to purchase or remain in unit 301 in an apartment building located at 919 L Street, 4

5 N.W., Washington, D.C. Tr (Miles); see also BX 7 at 9-15 (JAMS Arbitration Final Award in Tenacity v. Miles, setting forth facts surrounding Tenacity s purchase of building and offer to sell units to tenants). 3. Miles lived in unit 301 for approximately 15 years. Tr. 9 (Miles). In 2004, Tenacity purchased the apartment building when it was a cooperative and converted it to a condominium and offered the tenants the right to purchase their units at a reduced price, provided they do so within a specified time period. Miles took some steps to purchase her unit, but did not complete them within the required time frame. Tenacity gave her notice that she would have to vacate her unit and, through its agent Dreyfuss Brothers, Inc., initiated a landlordtenant action against Miles and some of the other tenants for possession of their units. Tr (Miles); BX 6 (Court Case Summary); BX 7 at 9-15 (JAMS Final Award). 4. Before Miles retained Respondent, she and four of the other tenants of 919 L Street had been represented by Bernard Grey in the landlord-tenant action. One of the other tenants had hired Grey to represent the small group of tenants in the building. Tr (Miles); see also BX 6 at 5 (Grey s praecipe filed in October 26, 2005, to withdraw as counsel for Miles in the landlord-tenant action and in four other related actions); BX 7 at 8 (Final Award states Grey initially represented five tenants, including Miles). 5. Miles had independently consulted with Tanya Waller about the contract to purchase her unit. When Miles decided she needed to hire her own counsel in the litigation, Waller referred her to Respondent. Tr (Miles). Miles spoke to Respondent by telephone and then agreed to meet him. Tr (Miles). 6. Miles testified that Respondent gave her a written retainer agreement in which he stated he would charge her a contingency fee of percent of any recovery. Tr. 13 (Miles). 5

6 When Miles s matter was on appeal, Respondent advised Miles that he would charge her a contingency fee of 20 percent of any recovery. Miles was unsure whether or not the amended fee agreement was in writing. Tr. 14 (Miles). Neither Bar Counsel nor Respondent proffered a written retainer agreement. 7. At the outset of the representation, Miles provided Respondent her contact information including her telephone numbers at work and home, her then home address (which was the subject matter of the representation), and her address. Tr (Miles). The home and work telephone numbers that Miles provided Respondent were the numbers where she could be reached throughout the period of the representation and continue to be her home and work telephone numbers today. Both Miles s home and work numbers had (and continue to have) answering machines or the ability to take messages if Miles was not available to answer the phone. Tr , 40 (Miles). The address that Miles provided to Respondent, which was her address at work, was the address that she used throughout the period of the representation and still uses today. Tr (Miles). 8. In December 2005, there were two matters pending against Miles: (1) a landlordtenant action that Tenacity, through its management agent Dreyfuss Brothers, Inc., had filed in June 2005 against Miles with the District of Columbia Superior Court, Landlord-Tenant Branch, seeking possession of her unit, Dreyfuss Bros., Inc. v. Cynthia Miles, 2005-LTB (BX 6); and (2) an arbitration proceeding that Tenacity had filed in September 2005 before JAMS, a private dispute resolution service, to establish that Miles (as well as other tenants) had not complied with the terms of an agreement governing the tenants rights to purchase their respective units and therefore had forfeited their rights to purchase the units. See BX 7 at

7 9. On December 20, 2005, pursuant to an order of the JAMS arbitrator, Tenacity filed a motion requesting a stay in the landlord-tenant action against Miles (as well as other tenants) pending resolution of the JAMS arbitration proceeding. On January 4, 2006, the landlord-tenant court granted the motion to stay the court action. BX 6 at 4-5 (Court Case Summary entries). 10. In March 2006, Respondent represented Miles in a three-day hearing before JAMS to resolve the respective claims of Tenacity and Miles to the unit in which she had been living. BX 7 at 8-9 (Final Award); see Tr (Miles). 11. On May 28, 2006, the JAMS arbitrator issued a final award in favor of Tenacity. The arbitrator found that Miles had forfeited her right to purchase her unit. BX 7 at The arbitrator declined to grant Tenacity s request for a declaration that Miles had to vacate the unit, as this was something only the landlord-tenant court could decide and order. BX 7 at 19-20, On May 31, 2006, Tenacity, through counsel, filed a motion to lift the stay in the landlord-tenant action for possession, which the landlord-tenant court granted on June 7, BX 7; BX 6 at 4 (Court Case Summary; entry for June 7, 2006). On June 13, 2006, Tenacity, through counsel, filed a motion with the landlord-tenant court to confirm the arbitration award. BX On July 5, 2006, Respondent entered his appearance as counsel for Miles in the landlord-tenant action, and thereafter filed motions on her behalf to have the court set aside the arbitration award. BX 9 (Praecipe); BX 6 at 3-4 (Court Case Summary). The court denied the motions. BX 6 at On August 24, 2006, after a hearing, the court entered judgment for Tenacity for possession. BX 6 at 3. Between August 29 and October 5, 2006, Respondent filed and argued 7

8 several post-judgment motions with the landlord-tenant court, seeking to modify or stay execution of the judgment for possession. BX 6 at 2-3; see also Tr (Miles; Respondent represented her in court proceedings but she is unsure of dates or details). 15. Miles testified that she knew that she had lost in the JAMS proceeding, and that she had been back in court several times represented by Respondent after the JAMS award and before the eviction. Tr On Tuesday, October 10, 2006, Miles was evicted pursuant to the August 24, 2006 judgment for possession. Miles testified that she first learned of the exact date of the pending eviction from the property manager in her building, possibly as late as Friday, October 6, Tr (Miles); BX 10 (Writ of Restitution). Miles testified that after speaking to the property manager she tried several times to reach Respondent, but was unable to do so before she was evicted. She testified that Respondent s phone rang but there was no answer. Tr , 30, 31 (Miles). 17. On October 10, 2006, Respondent filed an Application of Stay of Execution of the eviction, which was argued at a motion hearing that same day at 9:00 AM. The motion was denied. BX 6 at Also on October 10, 2006, Respondent filed a notice of appeal in the District of Columbia Court of Appeals from the landlord-tenant court rulings on behalf of Miles. BX 6 at 2; BX Also on October 10, 2006, Respondent filed an emergency motion in the Court of Appeals seeking to stay the eviction, which was denied as moot. BX 12 at 2 (Court of Appeals Docket Sheet). 8

9 20. The appeal that Respondent filed on behalf of Miles was pending from October 2006 through November 3, BX Sometime after she was evicted, Miles opened a post office box. Miles provided Respondent with her post office box address, which she still uses today. Tr (Miles). At some later point in the appeal process, possibly at the oral argument, Miles also provided Respondent with her cell phone number. Tr. 21 (Miles). 22. Miles testified that she asked respondent to pursue the appeal, and that she did have contact with Respondent at the beginning stages of the appeal. Tr While the appeal was pending, Miles periodically called and ed Respondent to learn the status of her matter. Tr , 32 (Miles); BX 15 at 1-2 ( s that Miles sent to Respondent on September 29, 2008, and July 1, 2009, respectively, asking for status of her appeal). 24. Miles also testified that during the appeal she communicated with Respondent, and that in fact he initiated communication with her a lot of times and sometimes would send Miles s. Tr , 42, 44, 46 (Miles). Respondent also sent Miles some paperwork concerning the appeal. Tr (Miles). 25. For an unspecified period of time, apparently toward the beginning of the appeal process, Miles testified that Respondent was not communicating with her about the status of her matter. Miles sought the assistance of another person, Mr. Hiawatha, to provide her information about her matter, and paid him a fee to do so. Hiawatha told Miles that her case was still pending before the Court. Tr (Miles). 26. On or about August 31, 2009, the Court of Appeals scheduled oral argument on Miles s appeal for October 29, BX 12 at 12 (Court of Appeals Docket Sheet). Respondent 9

10 advised Miles of the date and place of the argument. See BX 15 at 3-4 ( s that Miles sent to Respondent on October 16 and 26, 2009, requesting the details, including the Court s address, for the argument on October 29, 2009); Tr. 32 (Miles). Miles attended the argument with Respondent on October 29, Tr. 33 (Miles). 27. Three days later, on November 2, 2009, the Court issued a Memorandum Opinion and Judgment dismissing Miles s appeal on the grounds that the appeal was moot because Tenacity, the owner, had sold the unit to a third party and Miles had not asserted a claim for damages, but only sought the right of possession. BX 13. The Court s Memorandum Opinion and Judgment reflects that a copy was sent to Respondent, as counsel for Miles. Id. at Respondent did not advise Miles of the Court decision dismissing her appeal in November 2009, or anytime thereafter. Tr , 41, (Miles). 29. On November 23, 2009, Respondent filed a petition for rehearing of Miles s appeal. The Court denied the petition on January 13, BX 12 at 13 (Court of Appeals Docket Sheet). 30. Respondent did not advise Miles of the petition or the Court order denying it. Tr. 41 (Miles). 31. By no later than February 2010, Miles was attempting to communicate with Respondent to learn the status of the appeal. Miles called Respondent on the telephone and, on February 1, 2010, sent him an asking about any progress in her matter. Tr (Miles); BX 15 at 5. Respondent did not respond to Miles s inquiries or otherwise communicate with her. Tr (Miles). 32. Eventually Miles contacted the Court Clerk s office and inquired about the status of the appeal. A court employee advised Miles that her case was closed. Tr. 36 (Miles). Miles 10

11 again attempted to contact Respondent by on March 1, 2010, to determine whether her case was closed and, if so, why. Tr. 36; BX 15 at 6 (March 1, ). Respondent did not respond to Miles s or otherwise communicate with her. Tr (Miles); see also BX 14 at 3 (complaint by Miles); Tr. 37 (Miles; adopting statements). C. Respondent s Conduct During Bar Counsel s Investigation 33. On October 13, 2010, Miles filed a complaint with Bar Counsel because Respondent had failed to communicate with her about the ruling in her appeal, which had been argued October 29, She recited her efforts to reach Respondent in February and March 2010, and stated that Respondent owed her an explanation and should have provided her with a copy of the order deciding her appeal. BX 14; Tr (Miles). 34. Bar Counsel opened an investigation based on Miles s complaint. On October 19, 2010, Bar Counsel sent Respondent a letter with a copy of the complaint and other documents, and requested a written response to the allegations in the complaint by October 29, BX 16. Bar Counsel sent the letter with enclosures to Respondent at the address that he then listed with the D.C. Bar and it was not returned. Tr (Mayfield); BX 34 at 1 (Bar Counsel Case Chronology). 35. Respondent did not respond to Bar Counsel s inquiry. BX 34 at 1 (Bar Counsel Case Chronology). 36. Bar Counsel sent Respondent another letter on November 3, 2010, enclosing copies of Bar Counsel s previous letter and Miles s complaint and requesting that Respondent submit a written response by November 12, BX 17. This letter with enclosures was sent by regular and certified mail to Respondent s address listed with the D.C. Bar. Id. Respondent again did not respond to Bar Counsel s inquiry. Tr (Mayfield); BX 34 at 1 (Bar Counsel Case Chronology). 11

12 37. On November 8, 2010, a Bar Counsel investigator personally served Respondent with a subpoena duces tecum requesting him to provide the client file and all documents relating to his representation of Miles by November 22, BX On the same day, November 8, 2010, Respondent called Miles at her work. Respondent admitted to Miles that he had received the Bar complaint that she had filed against him. Miles explained to Respondent that she was not trying to get him into trouble, but that she believed she was entitled to information about her case. Respondent indicated that he would give her the information she wanted which, as Miles stated, Respondent should have done long ago. Respondent asked Miles whether, if he provided her information about the appeal, it would end the matter. Miles stated that, as far as she was concerned, it would because that is why she had filed the complaint. BX 19 (recording of phone message from Miles); Tr. 38 (Miles). 39. On the evening of November 9, 2010, Miles called Bar Counsel and left a message describing her discussion with Respondent on November 8, BX 19 (first two pages); Tr. 39 (Miles). 40. Notwithstanding his commitment to provide Miles with information about the Court decision, Miles did not receive from Respondent the Court decision, her client file or any information about her appeal after their call on November 8, Tr (Miles). 41. Miles first received a copy of the Court s Memorandum Opinion and Judgment dismissing her appeal as an enclosure to a November 10, 2010 letter from Bar Counsel. BX 20; Tr (Miles). 42. By November 8, 2010, Respondent knew of Miles s complaint and had received Bar Counsel s letters directing him to respond in writing and a subpoena for Miles s client file and documents relating to the representation. He nonetheless failed to respond to Bar Counsel s 12

13 inquiries and did not produce any documents responsive to the Bar Counsel s subpoena. BX 34 at 1 (Bar Counsel Case Chronology). 43. On November 22, 2010, Bar Counsel filed with the Board on Professional Responsibility a motion seeking an order directing Respondent to respond to Bar Counsel s written inquiry. BX 21. Respondent did not respond to or oppose the motion. BX 34 at 1 (Bar Counsel Case Chronology). 44. On December 3, 2010, Bar Counsel filed a motion with the Court to enforce the subpoena that had been personally served on Respondent on November 8, 2010, together with a motion to file under seal. BX On December 6, 2010, the motion to compel that Bar Counsel sent to Respondent was returned as undeliverable. Bar Counsel immediately contacted Respondent to determine if he had changed his address and, if so, to what location. BX 24 at 1. Respondent provided Bar Counsel his new (and still current) address of 7600 Georgia Avenue, N.W., Suite 203, Washington, D.C , on December 8, BX 24 at 2; Tr. 68 (Mayfield; Georgia Avenue address is Respondent s current address with the D.C. Bar). The next day, December 9, 2010, a Bar Counsel investigator personally served Respondent with Bar Counsel s motion to compel a response, with supporting documents that had been filed with the Board, and Bar Counsel s motion for an order to enforce the subpoena and the accompanying motion to file under seal that had been filed with the Court. BX 24 at 4 (O Connell Affidavit); see also Tr , (Mayfield). 46. On December 9, 2010, the Board issued an order directing Respondent to respond to Bar Counsel s written inquiry within 10 days of the date of the Board s order. The Board sent a copy of the order to Respondent at his Georgia Avenue address. BX

14 47. On December 10, 2010, Bar Counsel submitted written notices to both the Board and Court concerning the return of the motion to compel, Respondent s change of address, and the fact that Respondent was personally served with the motions filed with the Board and Court on December 9, BX 24; BX 25. Bar Counsel sent both notices to Respondent at his Georgia Avenue address. BX 24 at 3; BX 25 at 2, On December 17, 2010, Bar Counsel wrote another letter to Respondent, enclosing a copy of the Board order directing him to respond to Bar Counsel s inquiries, and reminding him of his obligation to comply with Bar Counsel s subpoena. BX 26. Respondent signed the receipt for the letter with enclosures sent by certified mail on December 21, BX 26 at 5. The copy sent by regular mail was not returned. BX 34 at 2 (Bar Counsel Case Chronology). 49. On December 23, 2010, Bar Counsel received from Respondent an opposition to the motion to enforce the subpoena, and a letter dated December 20, 2010, responding to Miles s Bar complaint. BX In his letter responding to Miles s complaint, Respondent made a number of knowing false representations, including: (1) he had attempted to reach Miles by telephone; (2) he had mailed a copy of the Court s ruling and his motion for rehearing to Miles; and (3) after the Court had denied the motion for rehearing, he had mailed her that ruling and her client file. BX 27 at 1. In fact, the documentary evidence and the testimony of Miles, which we find credible, shows that Respondent neither spoke to Miles by telephone nor left her a voice message after the oral argument (with the exception of the call on November 8, 2010, after receiving Bar Counsel s subpoena), although he had her telephone numbers and those telephones had answering machine capability. The evidence also shows that Miles never received from 14

15 Respondent any orders or documents relating to the appeal or her client file, although Respondent had Miles s postal and addresses. Tr , (Miles); see also BX 14 (Bar complaint filed by Miles); Tr. 37 (Miles; adopting statements). Miles s testimony can, of course, provide only circumstantial evidence of what Respondent did. Even though Miles received no phone call, voice message or documents from Respondent, it is theoretically possible that Respondent tried to place a call that did not go through, or mailed a document that was never delivered. What tips the scale in this case is Respondent s persistent and repeated refusal to provide any evidence that could refute Miles s testimony. Respondent defied Bar Counsel, the Board and the Court in refusing to produce any of the documents required by Bar Counsel s subpoena. Respondent s files might (or might not) have contained documents corroborating his statements. 2 In the end, the only available evidence bearing on the truth or falsity of the representations that Respondent made to Bar Counsel about his communications with Miles is the testimony of Miles herself. Miles s testimony, which we find credible, supports a finding that Respondent made knowing false representations to Bar Counsel in his letter responding to Miles s complaint. The evidence is circumstantial, as discussed above; but we find it clear and as convincing as it could be in light of Respondent s refusal to comply with Bar Counsel s subpoena. 51. On January 5, 2011, Bar Counsel filed with the Court a response to Respondent s opposition to the motion to enforce the subpoena. BX 28. Bar Counsel argued that the challenges Respondent raised in his opposition were not only untimely, but also filed in the wrong forum (they should have been filed with the Board). BX 28 at 1-2. As a matter of substance, Bar 2 Respondent also chose not to appear at the Hearing and has provided no testimony or other evidence to corroborate the representations he made to Bar Counsel. Of course Respondent was free to choose not to testify, and we draw no adverse inference from his mere silence. 15

16 Counsel stated that Respondent s opposition had no merit. Bar Counsel argued to the Court that the documents Bar Counsel sought in the subpoena were directly relevant to the investigation. Respondent had represented that he mailed the Court s rulings and the client file to Miles, which Miles had denied was the case. Bar Counsel argued that if, as Respondent contended, he mailed documents to Miles, his file would contain some documents to support his contentions. On the other hand, the absence of any supporting documents would corroborate Miles s allegations. BX 28 at On January 18, 2011, the Court issued an order granting Bar Counsel s motion to enforce the subpoena and ordering Respondent to produce all documents and files described in the subpoena within 10 days of the order. BX Respondent did not respond within the 10 days required by the Court order. Tr (Mayfield). 54. In February 2011, Bar Counsel retained a private process server to serve Respondent with the Court order and another copy of Bar Counsel s subpoena. Frederick Parsons of Capitol Process Servers initially tried to serve Respondent at his Georgia Avenue office, but Respondent was not there. Parsons called Respondent and arranged to serve him on Saturday, February 12, Parsons met Respondent in front of his office on February 12, 2011, at 5:40 p.m. and personally served Respondent with the Court order of January 18, 2011, Bar Counsel s letter of February 9, 2011, and another copy of Bar Counsel s subpoena. Tr. 57 (Parsons); BX 31; see also BX 30 (Bar Counsel s cover letter enclosing documents to be served on Respondent). 3 The Court s order reflects that it was sent to Respondent at his previous address with the D.C. Bar. It is unclear whether the Postal Service forwarded the order to Respondent at his Georgia Avenue address. Bar Counsel, however, took steps to personally serve Respondent with the order, and service was accomplished on February 12, FF

17 55. After being personally served with the Court order, Respondent still refused to turn over his client file and other documents responsive to the subpoena and has failed to produce any responsive documents to date. Tr , 73 (Mayfield). D. Respondent s Conduct During Formal Disciplinary Proceedings 56. In July 2011, Bar Counsel submitted a proposed Specification of Charges against Respondent. BX 2 (see p. 7, date sworn). On October 11, 2011, after the charges were approved, Bar Counsel filed the Specification of Charges and the Petition Instituting Formal Disciplinary Proceedings with the Board. BX 34 at 2 (Bar Counsel Chronology Report). 57. Bar Counsel provided Parsons with copies of the Specification of Charges, the Petition, the Memorandum of the Board s Executive Attorney, the Board Rules, the Court Rules, and other documents to serve on Respondent. Parsons attempted to serve Respondent at his office on October 11, 2011, and two additional times on October 13, On his second visit to Respondent s office on October 13, 2011, Parsons gave an employee in Respondent s office his card and telephone number, which the employee stated he would provide to Respondent. Tr (Parsons); BX 32 at Parsons called and spoke to Respondent on October 19, 2011, advising him that he was trying to serve him with the Specification of Charges and other documents. Respondent replied that he was out of town and would continue to be for an undetermined amount of time. Tr. 59, (Parsons); BX 32 at 1-2. Parsons called Respondent again on October 24, 2011, but the automated answering machine for Respondent s phone stated it was not accepting calls. Tr. 59 (Parsons); BX 32 at On October 26, 2011, Parsons returned to Respondent s office and, with the permission of one of Respondent s employees or office mates, left the Specification of Charges, the Petition and other documents on Respondent s desk. Tr (Parsons); BX 32 at 1. 17

18 60. The day before, October 25, 2011, Bar Counsel sent Respondent copies of the Specification of Charges, the Petition and other documents by regular and certified mail. Respondent refused to sign the receipt for the copies sent by certified mail sent to his office, and they were later returned. The copies sent by regular mail, however, were not returned. BX 34 at 2-3 (Bar Counsel Chronology Report); BX 3 at 2 (Motion to Court). 61. On November 9, 2011, Bar Counsel filed a motion with the Court to serve Respondent by regular and certified mail and publication. BX 3. Bar Counsel sent the motion and the attachments to Respondent at his Georgia Avenue address. BX 3 at On December 5, 2011, the Court granted Bar Counsel s motion to serve Respondent by regular and certified mail and by publication. BX 4. Bar Counsel served Respondent in accordance with the Court s order, and thereafter provided proof to the Board Office of the service. BX 5. Respondent refused to sign the receipt for the Specification of Charges and other documents sent by certified mail. Tr. 82 (Mayfield); BX 34 at 2-3 (Bar Counsel Chronology Report). However, the Specification of Charges and documents sent to Respondent by regular mail were not returned. Tr. 83 (Mayfield); BX 34 at 2-3 (Bar Counsel Chronology Report). 63. After being served with the Specification of Charges, Respondent failed to file an Answer. Instead, Respondent filed with the Board a motion to dismiss or for a stay of the proceedings. BX 33. Respondent falsely represented in the certificate of service for the motion that he had hand-delivered a copy to Bar Counsel on December 30, BX 33 at 7. This was not true, as Respondent had not delivered the motion by hand or had anyone else deliver it on December 30, 2011, and had not served Bar Counsel by any other means. Tr , (Mayfield); BX 34 at 3 (Bar Counsel Chronology Report). 18

19 64. Bar Counsel first learned of Respondent s motion to dismiss or for a stay in February 8, 2012, when the Board office requested Bar Counsel to respond and provided Bar Counsel a copy of Respondent s motion. Tr. 73 (Mayfield); BX 33 at 1. Bar Counsel filed its opposition to the motion on February 17, BX 34 at 3 (Bar Counsel Chronology Report). 65. On February 14, 2012, the Board sent Respondent and Bar Counsel a notice of the prehearing conference scheduled for March 1, The Board Office sent the notice to Respondent at his Georgia Avenue address. Respondent admits that he received a copy of the notice. Transcript of March 1, 2012 prehearing conference at On February 29, 2012, the Chair issued a report and recommendation concerning Respondent s motion to dismiss. The Board Office sent the report and recommendation to Respondent at his Georgia Avenue address, and it was not returned. BX 35 (Affidavit of Meghan Borrazas, 9). Respondent admitted at the prehearing conference that he had received a copy of the Chair s report and recommendation by facsimile. Prehearing Transcript at On March 14, 2012, the Chair of the Board issued an order denying Respondent s motion to stay this matter. The Board Office sent the March 14, 2012 order to Respondent at his Georgia Avenue address, and it was not returned. BX 35 (Borrazas Affidavit, 10). 68. In the interim, the Hearing Committee Chair held a prehearing conference on March 1, Respondent failed to appear in person at the prehearing conference, and had not previously advised the Board Office that he could not attend, nor did he seek a continuance. Prehearing Transcript at 4. Respondent called the Board Office on March 1, 2012, and requested permission to participate in the prehearing by telephone. Prehearing Order at 1. At the prehearing, Respondent admitted that he had not filed an Answer to the Specification of Charges. Prehearing Transcript at 8-9. The Chair advised Respondent of Board Rule 7.7 and the 19

20 limitations it would place on him if he did not file an Answer, and set a deadline of March 12, 2012, for Respondent to file an Answer with a motion pursuant to Board Rule 7.5 requesting permission to file it out of time. Respondent indicated that he would file an Answer and attend the Hearing on April 17, 2012, at 9:30 a.m. Witness lists and proposed exhibits were to be filed by April 6, 2012, and the parties were to file bench briefs not to exceed ten pages by April 10, Prehearing transcript Respondent indicated awareness of and agreement to all of the deadlines. Prehearing Transcript at 9-11, 14, These deadlines were memorialized in an Order of the Chair on March 1, 2012, which also provided that objections to proposed exhibits and any stipulations were to be filed by April 13, Respondent never filed the promised Answer or motion. Tr. 70 (Mayfield); BX 34 (Bar Counsel s Chronology); BX 35 (Borrazas Affidavit, 7-8). He never filed proposed exhibits or listed any witnesses. He never filed a pre-hearing bench brief. Respondent also failed to appear at the Hearing on April 17, Respondent did not attend the Hearing. Tr. 5. Respondent received notice of the Hearing at the prehearing conference and was reminded several times thereafter of the Hearing date, including when he was sent (1) the prehearing order; (2) the transcript of the prehearing conference which was mailed to him on March 15, 2012; (3) the Board Office s letter of April 2, 2012, notifying the parties that Ms. Price would be serving as the public member at the Hearing on April 17, 2012; and (4) copies Bar Counsel s exhibits, witness list, and bench brief, which were additional copies of the same documents Bar Counsel had delivered to Respondent s Georgia Avenue address by messenger. 71. At the end of the Hearing the Hearing Committee ordered Bar Counsel to file and serve proposed findings of fact and conclusions of law within ten days after receipt of the 20

21 transcript, ordered Respondent to file and serve a responsive brief within ten days after service of Bar Counsel s brief, and authorized Bar Counsel to file and serve a reply within five business days after service of Respondent s response, with time to be calculated in accordance with Board Rule 12.1(a). Tr Bar Counsel filed and served proposed findings and conclusions and a recommendation as to sanction on May 7, Respondent did not file a timely response to Bar Counsel s May 7 filing. Instead, on May 25, 2012, Respondent lodged with the Board on Professional Responsibility a motion for leave to file an untimely reply, together with the proposed reply. On June 11, 2012, Bar Counsel filed and served a response indicating no opposition to the motion for leave to file an untimely response, and also filed a reply brief. On June 13, 2012, the Chair granted Respondent s motion, accepting the untimely response for filing. E. Findings Concerning Credibility of Witnesses 73. Bar Counsel s witnesses testified credibly. Miles, who was obviously anxious about testifying at the Hearing, was careful in responding to questions to state only what she knew or remembered. Miles did not hesitate to admit when she was uncertain about a date or an event. Miles s recollection of the period between 2005 and late 2009 was understandably vague, which affects the weight of her testimony. Her recollection of more recent events was, obviously, fresher, and carried more weight with the Hearing Committee. Miles displayed no animosity toward Respondent, and admitted that he had sometimes communicated with her, enabling her, among other things, to attend the argument of her appeal. She did not criticize the quality of Respondent s legal work; only the extent to which he sometimes failed to keep her informed about the status of her case, and his failure to provide her with certain materials that she had requested and which he had promised to send. Her credibility as well as that of Bar Counsel s other witnesses was corroborated by the documentary evidence. 21

22 74. We make no finding of credibility concerning Respondent, who chose not to proffer any witnesses and absented himself from the evidentiary Hearing. When there is no testimony, credibility does not come into play. CONCLUSIONS OF LAW A. Failure to Communicate With Client or Respond to Reasonable Requests for Information (Rule 1.4(a)) Rule 1.4(a) requires a lawyer to keep the client reasonably informed about the status of the matter and promptly comply with the client s reasonable requests for information. Bar Counsel does not contend that Respondent violated Rule 1.4(a) in representing Miles until some time in the fall of Prior to that time, Respondent had represented Miles in a three-day arbitration hearing, and had unsuccessfully opposed confirmation of the arbitration and entry of a judgment of possession in landlord-tenant court. Miles testified that she knew that she had lost in the JAMS proceeding, and that she had been back in court several times represented by Respondent after the JAMS award and before the eviction. Tr According to Bar Counsel and Miles, the trouble started in October See Specification of Charges 9. Miles complained in her testimony that Respondent did not forewarn her of her October 10, 2006 eviction and did not respond to her telephone calls and requests for information in the period approximately from Friday, October 6 to Tuesday, October 10, Tr However, Bar Counsel s evidence also shows that Respondent was actively engaged in trying to prevent Miles s eviction. On October 10 alone, Respondent filed an application in Superior Court to stay the eviction, argued in support of that application at a hearing (presumably an emergency hearing) at 9:00 a.m., and then filed a notice of appeal as well as an emergency motion to stay the eviction in the Court of Appeals. 22

23 The appeal was pending for three years. According to Bar Counsel and Miles, there were times during that period when Miles had difficulty getting information from Respondent. At one point, Miles testified, she hired Hiawatha, a non-lawyer, to investigate the status of her appeal, and he reported that it was still pending. However, Miles also testified that she asked Respondent to pursue the appeal, that she was in communication with Respondent at the beginning stages of the appeal, and that Respondent sent her some paperwork to sign concerning the appeal. When she and Respondent communicated about the appeal, he initiated their communications a lot of times, and he informed her of the time and place of the oral argument, which she attended. Bar Counsel contends that the most egregious violations of Rule 1.4(a) by Respondent occurred when the Court dismissed Miles s appeal. Respondent failed to advise Miles about the Court decision or communicate with her about the dismissal of her appeal and the reason why it was dismissed. Miles called and sent Respondent s asking about the status of the appeal, but according to Miles, Respondent failed to respond. Miles learned that her case was closed by calling the Court. Even after Miles filed a Bar complaint, Respondent failed to provide her the information and copies of the Court rulings to which Miles was entitled. Miles received the Court decision from Bar Counsel, not from Respondent. While Respondent presented no evidence to controvert Miles s testimony and documents, Respondent s May 25, 2012 post-hearing brief makes several arguments which are to a degree supported by the evidence. In essence, Respondent argued that he was in fairly regular contact with Miles, that he did file briefs and argue motions on her behalf over the years, and that on many occasions he did communicate with her about the status of her matters. Miles s testimony at the Hearing supported these arguments to the extent reflected in the Committee s proposed findings. 23

24 Bar Counsel has failed to present clear and convincing evidence that Respondent violated Rule 1.4(a) until after the Court of Appeals dismissed Miles s appeal on November 2, As Respondent s post-hearing brief points out, Miles s recollection of events six and seven years ago is understandably vague, although we find that she was trying to testify honestly to the best of her recollection. Her testimony about the period from the beginning of Respondent s representation in 2005 until late 2009 is credible, but also uncertain. While Miles is frustrated that Respondent did not forewarn her of the exact date of her eviction, there is no doubt that Respondent at that time was in court actively, though unsuccessfully, trying to prevent that eviction. Similarly, while Miles remembers hiring Hiawatha at some point to check on the status of her then-pending appeal, she also testified that Respondent pursued the appeal at her request, was in communication with her at least in the early stages, sent her paperwork about the appeal, and informed her of the date, time and place of the oral argument so that she could attend. In sum, the evidence of a Rule 1.4(a) violation between October 2006 and November 2009 is neither clear nor convincing. The evidence about the period after the Court of Appeals dismissed Miles s appeal on November 2, 2009 is different. It was obvious at the Hearing that Miles s memory of events that took place between November 2009 and October 2010 is clearer than her memory of events between 2005 and Moreover, all of the evidence concerning the period from November 2009 to the present tends to confirm that Respondent never communicated with Miles about the outcome of her appeal and never sent her a copy of the Court of Appeals ruling, with the exception of a single telephone call on November 8, 2010 in which Respondent, after receiving 4 Under the clear and convincing evidence standard, Bar Counsel must offer evidence that will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. In re Allen, 27 A.3d 1178, 1184 (D.C. 2011) (quoting In re Dortch, 860 A.2d 346, 358 (D.C. 2004)). 24

25 Bar Counsel s letter, offered to send Miles the materials she sought. BX 19 (recording of phone message from Miles); Tr. 38 (Miles). Respondent chose not to appear and proffered no evidence whatever to controvert Miles s clear and convincing testimony that she never received any information about her appeal from Respondent after she attended the oral argument on October 29, Bar Counsel has not met its burden of showing by clear and convincing evidence that Respondent violated Rule 1.4(a) with respect to his representation of Miles before November 2, Bar Counsel has shown by clear and convincing evidence that Respondent violated Rule 1.4(a) by failing to keep Miles reasonably informed of the status of her appeal, and by failing to respond to her reasonable requests for information, after November 2, FF 27-32, B. False Statements to Bar Counsel in the Course of the Investigation (Rules 8.1(a), 8.4(c), and 8.4(d)) Rule 8.1(a) prohibits a lawyer, in connection with a disciplinary matter, from knowingly making a false statement of fact. Rule 8.4(c) also prohibits a lawyer from making knowing false statements, but is not limited to disciplinary matters. It provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The Court has stated that Rule 8.4(c) is not to be accorded a hyper-technical or unduly restrictive construction. In re Ukwu, 926 A.2d at 1106, 1113 (D.C. 2007). The term dishonesty under Rule 8.4(c) includes not only fraudulent, deceitful or misrepresentative conduct, but is a more general term that also encompasses conduct evincing a lack of honesty, probity, or integrity in principle; [a] lack of fairness and straightforwardness. In re Hager, 812 A.2d 904, 916 (D.C. 2002) (quoting In re Shorter, 570 A.2d 760, (D.C. 1990) (citations omitted)). Dishonesty includes not only affirmative misrepresentations but also a failure to disclose when there is a duty to do so. Concealment or suppression of a material fact is as 25

26 fraudulent as a positive direct misrepresentation. In re Reback, 487 A.2d 235, (D.C. 1985) (per curiam) (citation omitted), adopted in pertinent part, 513 A.2d 226, 229 (1986) (en banc). Respondent failed to appear at the Hearing or otherwise to proffer any evidence to refute Bar Counsel s charges concerning Rules 8.1(a), 8.4(c), and 8.4(d). Even in his post-hearing brief, Respondent respectfully decline[d] to address these charges, based on the arguments Respondent made in his motion to dismiss. Respondent s Post-Hearing Brief at 4. While Respondent s refusal to present a defense to these charges is unfortunate, it does not excuse the Committee from independently assessing the evidence and applying the law to the facts. Bar Counsel, not Respondent, has the burden of proof. The evidence shows that Respondent violated Rules 8.1(a) and 8.4(c) when he made knowing false statements to Bar Counsel in his response to Miles s complaint. Respondent falsely stated in his written response that he had attempted to contact Miles, although he does not say when and where he called her. FF 50. Remarkably, after receiving Miles s Bar complaint, Respondent had no trouble reaching her that same day. FF 38. Respondent also falsely stated to Bar Counsel that he had provided Miles with copies of the Court decision dismissing her appeal, his motion for rehearing, the Court s order denying the motion for rehearing, and her client file. FF 50. These statements were false and Respondent knew they were false when he made them. Respondent s refusal to produce documents responsive to Bar Counsel s subpoena documents which, if Respondent were being truthful, might have corroborated his statements further undermines Respondent s position. Clear record evidence demonstrates that Respondent violated Rules 8.1(a) and 8.4(c) by making knowing false statements to Bar Counsel. 26

27 Respondent s knowing false statements to Bar Counsel also violated Rule 8.4(d), which prohibits conduct that seriously interferes with the administration of justice. To establish a violation of Rule 8.4(d), Bar Counsel must demonstrate by clear and convincing evidence that: (i) Respondent s conduct was improper, i.e., that Respondent either acted or failed to act when he should have; (ii) Respondent s conduct bore directly upon the judicial process with respect to an identifiable case or tribunal; and (iii) Respondent s conduct tainted the judicial process in more than a de minimis way, i.e., it must have potentially had an impact upon the process to a serious and adverse degree. In re Hopkins, 677 A.2d 55, (D.C. 1996). Respondent s conduct satisfies all three elements. His knowing false statements about his communications with Miles and the documents he had purportedly provided her were clearly improper; the conduct bore directly on Bar Counsel s investigation of Miles s complaint and this disciplinary matter; and the knowing false statements that Respondent made to Bar Counsel had the potential adversely to impact the process. See In re Boykins, 999 A.2d 166, 172, 174 (D.C. 2010) (Boykins violated Rules 8.4(d), as well as Rules 8.1(a) and 8.4(c), by making reckless and knowing false statements to Bar Counsel during its investigation of the client matter). C. Failure to Comply with the Court Order (Rule 8.4(d) and D.C. Bar Rule XI, 2(b)(3)) Respondent also interfered with Bar Counsel s ability to investigate Miles s complaint by refusing to respond to Bar Counsel s inquiries until ordered to do so by the Board and failing to produce Miles s client file and other documents responsive to Bar Counsel s subpoena. FF 35-40; Respondent did not have a legitimate or good faith basis to refuse to comply with Bar Counsel s subpoena, particularly after the Court ordered him to comply with the subpoena. In his post-hearing brief, Respondent respectfully decline[d] even to address this issue. His refusals to respond to the subpoena and comply with the Court order were improper and prevented Bar 27