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: ) ) KIM E. HALLMARK, ) Bar Docket Nos , , 91-97, ) and Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY Two matters involving five cases against Respondent are before the Board on Professional Responsibility (the Board ). The first matter involves three cases, Bar Docket Nos , and 91-97, and is before the Board on Respondent s exception to the sanction recommendation proposed in the Report and Recommendation of Hearing Committee Number Four (the Committee ). The second matter involves two cases, Bar Docket Nos and , and is before the Board on Respondent s exception to the findings, conclusions and sanction recommendation proposed in the Report and Recommendation of the Ad Hoc Hearing Committee (the Ad Hoc Committee") and Bar Counsel s exception to the sanction recommendation. The misconduct at issue in the five cases involves neglect of client matters, fee disputes in the wake of Respondent s withdrawal from representation, and conduct prejudicial to the administration of justice. Both committees concluded that Respondent had committed multiple violations of the Rules of Professional Conduct (the Rules ). Both committees have recommended that Respondent be suspended for a short period of time. The Committee recommended a 90-day suspension and that she be required to demonstrate her fitness to practice law as a condition of her reinstatement. The Ad Hoc Committee recommended a 30-day suspension, without a fitness requirement, and that Respondent be required to make restitution.

2 We agree with the conclusions of the Committee and the Ad Hoc Committee that Bar Counsel has proven each violation alleged by Bar Counsel by clear and convincing evidence, with the exception of a Rule 8.4(d) violation in Bar Docket No Based on the record before us, the Board recommends that Respondent be suspended from the practice of law in both cases for a period of 90 days, that she be required to make restitution in the amount of $700 plus interest to her former client, Donna Roberson, in Bar Docket No and $475 plus interest to her former client, Eugene Franklin, in Bar Docket No , and that she be required to demonstrate her fitness to practice law as a condition of her reinstatement to the Bar. I. Procedural Background A. Bar Docket Nos , and Bar Counsel filed two petitions charging Respondent with misconduct in three cases 1. Bar Docket Number 77-96, the voucher case, involves Respondent s submission of a Criminal Justice Act ( CJA ) voucher form to the D.C. Superior Court that contained information that Bar Counsel alleges to be false. Bar Counsel charged Respondent with violations of the following Rules: 1. Rule 1.5(a), charging an unreasonable fee; 2. Rule 8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 3. Rule 8.4(d), engaging in conduct that seriously interferes with the administration of justice. 1 Bar Counsel filed her Petition and Specification of Charges in Bar Docket Number and her Petition and Specification of Charges in Bar Docket Numbers and on August 4, The two petitions were consolidated for hearing before Hearing Committee Number Four. 2

3 Bar Docket Number , the Franklin case, arose from Respondent s alleged engagement by Eugene Franklin to represent him in a personal injury matter. Bar Counsel charged Respondent with violations of the following Rules: 1. Rule 1.3(a), failing to provide zealous and diligent representation for a client; 2. Rule 1.4(a), failing to keep a client reasonably apprised of the status of a matter and/or complying promptly with reasonable requests for information; 3. Rule 1.15(d), failing to return an unearned portion of a fee; 4. Rule 1.16(d), in connection with the termination of representation, failing to take timely steps to the extent reasonably practicable to protect a client s interests, including surrendering the client s file and refunding any advance payment of fees not earned; 5. Rule 8.4(d), engaging in conduct that seriously interferes with the administration of justice; and 6. D.C. App. R. XI, 2(b)(3) & (4), failing to respond or comply with an order of the Board without asserting in writing the grounds for not doing so. Bar Docket Number 91-97, the Patterson case, arose from Respondent s alleged engagement by Jenise Patterson to expunge a misdemeanor conviction for carrying a dangerous weapon (gun). Bar Counsel charged Respondent with violations of the following Rules: 1. Rule 1.3(a), failing to provide zealous and diligent representation for a client; 2. Rule 1.4(a), failing to keep a client reasonably apprised of the status of a matter and/or complying promptly with reasonable requests for information; 3. Rule 8.4(c), engaging in conduct involving dishonesty, fraud, deceit and misrepresentation; and 4. Rule 8.4(d), engaging in conduct that seriously interferes with the administration of justice. 3

4 On January 24, 1997, Respondent filed a motion with the Board seeking the appointment of counsel based on indigency in Bar Docket Numbers and By order dated March 13, 1997, the Board denied Respondent s request because her earnings exceeded the income level for appointment of counsel. Respondent filed a motion for reconsideration on March 17, 1997, that was denied by the Board in an order dated March 20, Respondent submitted a letter to the Board dated August 7, 1997, seeking reconsideration of her earlier motion for appointment of counsel based on indigency. Attached to the motion was a copy of a bankruptcy petition filed in the United States Bankruptcy Court, her 1996 federal income tax return, and a statement of payments from the CJA office from May 1996 to August On September 12, 1997, Respondent also filed an updated affidavit in support of her motion. On September 15, 1997, the Board issued an order finding Respondent entitled to proceed in forma pauperis and granting Respondent s motion for the appointment of counsel. On September 10, 1998, an attorney member of the Committee was excused due to a conflict. Rather than proceed with two members, the Chair elected to reschedule the hearing. On October 13, 1998, the day before the rescheduled hearing, the replacement attorney member of the Committee recused herself due to a conflict with Respondent s counsel. On the first day of the hearing, October 14, 1998, Respondent, though represented by counsel, filed three pro se motions with the Committee: (1) an Objection and Motion for Continuance pursuant to Rule XI, 5(a) seeking to delay the hearing until a third member could be appointed to participate in the hearing; (2) a Motion for Continuance arguing that she had just received from the Federal Bureau of Investigation (the FBI ) the return of her computer and client files that had been seized by the FBI from her office and storage facility so that she might have an opportunity to review them to determine if they contained materials relevant to 4

5 the current proceeding; 2 and (3) a Motion for Summary Dismissal of the proceedings based on the fact that they were the outcome of an unlawful search and seizure of Respondent s law practice by what Respondent deemed to be a joint investigation of her by the Office of Bar Counsel and the FBI. Over the objections of Respondent, the Chair decided to proceed with the hearing with two members as permitted by Board Rule 7.10 to avoid an additional delay in the proceeding. A two-day hearing was held on October 14, 1998 and October 16, 1998 in all three matters. The Chair also declined to grant Respondent s motion for summary dismissal. Respondent did not take exception to these rulings. At the hearing, the evidence with respect to each of the above matters was presented separately. Bar Counsel called eight witnesses: Eugene Franklin, Susan L. Elbertson, David S. Felter, Jenise Patterson, Ronnece R. Martin, Herbert C. Robinson, John F. Schultheis and Frederick S. Avery, Esquire. Respondent called three witnesses: Dr. Ferris E. Hallmark, Antonio Jackson, and Mark Rochon, Esquire. Respondent testified in her own behalf, separately in each of the three matters. All of Bar Counsel's exhibits were admitted into evidence without objection, including Exhibits 1 through 12 (relating to Bar Docket No ), Exhibits 101 through 118 (relating to Bar Docket No ), and Exhibits 201 through 207 (relating to Bar Docket No ). 3 At the hearing, Respondent introduced Exhibits A through T, 4 and 2 On November 15, 1996, the FBI executed a search warrant for Respondent s residence and storage locker, seizing files and her computer equipment, in connection with its investigation of Rhozier T. Roach Brown, a nonlawyer social acquaintance who had worked as a paralegal in Respondent s office. (Oct. 14, 1998 Hearing Transcript ( Tr. I ) 201, 283; Oct. 16, 1998 Hearing Transcript ( Tr. II ) , 295; Resp. Oct. 14, 1998 Mot. For Continuance Based on Newly Obtained and Unavailable Evidence.) None of the disciplinary charges herein relate to the FBI s investigation of Mr. Brown, an individual familiar to the D.C. courts and federal law enforcement. See, e.g. U.S. v. Brown, 375 F.2d 310 (D.C. Cir. 1966). In December 1996, the FBI issued a subpoena for additional documents. (Tr. I 192.) Respondent believed that the seized materials contained evidence relevant to the Committee s review and hampered her ability to defend herself against Bar Counsel s charges. (Resp. Oct. 14, 1998 Mot. For Continuance Based on Newly Obtained and Unavailable Evidence.) 3 Bar Counsel s Exhibits will be referred to by BX. 4 Respondent s Exhibits will be referred to by RX. 5

6 all were admitted into evidence, with Exhibits N, O, and P admitted following an October 28, 1998 order of the Board issued pursuant to Rule XI, 17 that sealed the documents. 5 At the conclusion of the hearing, the Committee made a preliminary finding that one or more disciplinary rules had been violated. Bar Counsel then proffered an informal admonition previously issued to Respondent as evidence in aggravation. Respondent did not proffer any additional evidence in mitigation. After the hearing, Respondent submitted a motion to admit supplemental exhibits RX U, V, and W, which were admitted without objection. Respondent subsequently submitted pro se a notebook of documents, marked as RX X, which was also admitted without objection. 6 The Committee issued its Report and Recommendation on March 23, 2000, finding violations of Rules 1.4(a), 1.15(d), 1.16(d) and 8.4(d) and Rule XI, 2(b)(3) and (4) but no violations of Rules 1.3(a), 1.5(a), and 8.4(c). The Committee recommended that Respondent be suspended for 90 days and be required to demonstrate fitness before being reinstated to practice law. Respondent filed exceptions to the Committee s recommended sanction. Bar Counsel did not take exception to the Committee s Report. Oral argument was heard before the Board on September 21, B. Bar Docket Nos and The Board granted Respondent s motion for protective order with regard to the documents which originated from a sealed grand jury proceeding. 6 RX X is a notebook that contains a variety of documents that are not numbered or otherwise indexed. Many of the documents relate to the FBI search of Respondent s computer files and client files. Some of the documents relate to Bar Counsel investigations of Respondent. 6

7 While this first matter was being litigated, a second matter involving Respondent was working its way through our disciplinary system. Bar Counsel had filed a petition against Respondent on November 30, 1998, concerning two additional complaints. Bar Docket Number , the Bedney case, arose from Respondent s alleged engagement by Troy Lafonzo Bedney to pursue a personal injury claim. Bar Counsel charged a violation of Rule 1.16(d) in connection with the termination of the representation undertaken for Mr. Bedney. Bar Docket Number , the Roberson case, arose out of Respondent s alleged engagement by Donna Roberson to make a court appearance and file a motion to dismiss in a landlord-tenant matter. Bar Counsel charged Respondent with violating four Rules: 1. Rule 1.15(d), failure to return an unearned portion of the fee paid by her client; 2. Rule 1.16(d), failure to take timely steps to the extent practicable to protect her client s interests, including refunding the advance payment of legal fees; 3. Rule 5.3(b), failure to make reasonable efforts to ensure that her nonlawyer s assistant s conduct was compatible with her professional obligations; and 4. Rule 8.4(c), engaging in conduct involving dishonesty, fraud deceit and/or misrepresentation when she informed the court about her termination as counsel. On December 14, 1999, a single hearing was held before an Ad Hoc Committee to consider the two cases. At the hearing, Bar Counsel presented only one witness in Bar Docket Number , Donna Roberson, the complainant. Bar Counsel presented no witnesses in Bar Docket Number because the complainant, Troy Bedney, had died prior to the time of the hearing. Respondent did not present witnesses in either matter, nor did she testify on her own behalf. Bar Counsel proffered exhibits which were admitted into evidence and marked as Exhibits 1 and 2 (relating to Bar Docket No ), and 101 7

8 through 121 (relating to Bar Docket No ). 7 Respondent offered Exhibits 1 through 20, which were admitted into evidence. On November 16, 2000, the Ad Hoc Committee issued its Report and Recommendation finding no violations with respect to the Rule 5.3(b) and Rule 8.4(c) charges but finding violations of Rule 1.16(d) in both cases and Rule 1.15(d) in the Roberson case. The Ad Hoc Committee recommended a 30-day suspension and the return of $700 in unearned fees to Ms. Roberson in restitution. Respondent took exception to the Report, arguing that the factual findings were incomplete, the conclusions of law were erroneous to the extent that they found violations of the Rules on the part of Respondent, and the proposed sanction was too harsh. Bar Counsel took exception only to the sanction. Bar Counsel also requested that the Board consolidate these two cases with Bar Docket Nos , and 91-71, the three pending cases that were argued before the Board on September 21, Upon learning of the issuance of the Ad Hoc Committee s report in this second matter involving Respondent, the Board delayed its decision on the first matter and arranged for an expedited oral argument, which was held on February 8, At oral argument, Respondent agreed to consolidation of the five cases. Therefore, the Board addresses both Hearing Committee reports in this report and recommends a sanction for all five cases pending against Respondent. See In re Thompson, 498 A.2d 250 (D.C. 1985). II Findings of Fact 7 Bar Counsel s Exhibits for this second matter will be referred to as BXX. 8

9 We have used the findings of fact of the Committee and the Ad Hoc Committee as a starting point for our findings; however, pursuant to Board Rule 13.6, we have expanded certain findings for clarification purposes and included additional findings based on the record, where we felt an expansion of the findings of the Committees was necessary. A. Findings of Fact - General 1. Respondent is a member of the District of Columbia Bar, having been admitted on June 7, Respondent practiced law as a solo practitioner, first in a separate office at 601 Pennsylvania Avenue, N.W., until about February 1995, and then in a home office in her apartment building at 801 Pennsylvania Avenue, N.W., where she often met clients in the lobby. Some time after July 1996, Respondent moved to New York City where she lived until June 1997, when she returned to her apartment in Washington, D.C. While she was in New York, Respondent briefly sublet her apartment in Washington, D.C. 3. Respondent was assisted, from time to time, by Darryl Smith, a nonlawyer social acquaintance who served as her investigator, and his father, Rhozier T. Roach Brown, who briefly served as her paralegal. Both names appeared on Respondent s stationery in (RX X.) 4. Respondent was the subject of an informal admonition in 1996 for a violation of Rule 1.16(d) when she failed to surrender a client file in a timely manner. B. Bar Docket Number The Voucher Case 1. Under a CJA appointment of December 10, 1993, Respondent represented a complaining witness, Antonio Jackson, in an attempted-murder case captioned United States v. Carlos Miller, F (BX 2, 3; RX J; Tr. II 33-34, 54, ) 2. The representation included counseling the witness concerning his testimony and Fifth Amendment privilege. (BX 2, 3; Tr. II ) The representation appeared to be more complex than usual, as the prosecution s case badly needed the testimony of Mr. Jackson, and there was a substantial issue whether Mr. Jackson had waived the privilege prior to appointment of Respondent as his counsel. (Tr. II 156, , 208.) Moreover, the prosecution submitted motions attempting to have new counsel appointed and to compel grand jury testimony from Respondent s client, all of which were denied (Tr. II , , 180.) On June 19, 1994, the court dismissed the underlying criminal matter for want of prosecution. (BX 1, 3, 5; RX J; Tr. II 54.) 9

10 3. On December 19, 1994, Herbert Robinson, Chief of Staff, CJA Office, issued a voucher to Respondent for the representation. (BX 2, 5; Tr. II 35.) Pursuant to guidelines governing vouchers, which were promulgated by the CJA Office and available to Respondent and every attorney, a voucher must be filed within 60 days of the conclusion of the case or 30 days subsequent to the issuance of the voucher, whichever comes later. (BX 7; Tr. II ) The voucher requires the submitting attorney to attest to the truth and correctness of a submission. (BX 5; Tr. II 55, ) 4. The voucher was due on January 19, (Tr. II ) On July 25, 1995 some six months after it was due and over a year after the services were rendered Respondent executed the voucher form, seeking $6, for services allegedly related to the representation of Mr. Jackson. (BX 3, 5.) 5. The CJA office received the voucher on August 4, 1995, well outside either the 30-day or 60-day limitation. (BX 5, 8; Tr. II 58.) Respondent requested a waiver of the due date, as required by the office. (BX 8.) 6. The statutory limitation for representation of an individual charged with a felony and representing a witness in a felony matter was $2,450. (Tr. II 47.) A voucher over the limitation must be submitted with a supporting letter from the claimant to the presiding judge or hearing commissioner and must be transmitted to the Chief Judge with a recommendation by the presiding judge or hearing commissioner. (Tr. II ) Respondent provided no letter in support of her voucher. (Tr. II ) 7. In a letter to Respondent dated November 28, 1995, Judge Kennedy declined to approve Respondent s requested payment without a further accounting, stating that her voucher greatly exceeds the range of compensation that has been requested by other attorneys in similar cases. (BX 3.) He also requested Respondent to submit to him a further written explanation for the claims made in her voucher. (BX 3.) Respondent failed to provide any further explanation to the Judge. (BX 1; Tr. II , ) 8. On or about January 30, 1996, Judge Kennedy formally disapproved Respondent s voucher request and reported the matter to Bar Counsel as well as to the Chief Judge. (BX 1.) Additionally, based upon an apparent impropriety and irregularity in fees and/or expenses sought by Respondent s investigator, Darryl Smith, during the representation, Judge Kennedy denied the investigator s voucher, notwithstanding Respondent s representation to the court that the investigator s expenditures were necessary and otherwise proper. (BX 1, 6.) 9. In the voucher and her letter of response to Bar Counsel, Respondent represented that during the representation from December 1993 until the summer of 1994, she had spent over 13 hours in conference with Fred Avery, Esquire, a member of the Bar with around 20 years of experience 10

11 in CJA work, with whom Respondent enjoyed a social, but not intimate, relationship. (BX 2, 5; Tr. II 87, 89.) Respondent stated that she had required Mr. Avery s assistance because she lacked experience in handling the matter, and she averred that the time entries for his assistance were accurate, including those involving dinner meetings, such as the one billed on January 13, (BX 2; Tr. II , ) 10. Mr. Avery had only a fuzzy recollection regarding the time spent conferring with Respondent on the Jackson case. He recalled discussing a Fifth Amendment case with Respondent during that period, but denied that he formally assisted on the case. (Tr. II ) He could not recall whether he had discussed the matter on ten occasions. (Tr. II 97.) He was certain that he did not discuss the matter with Respondent for 13 hours and 45 minutes, the amount of time set forth in the voucher, because if this had occurred he likely would remember that, (Tr. II 97, ); however, he acknowledged that it was likelier than not that he spent time in conversation with Respondent on business and social matters at the times set forth in the voucher. (Tr. II 106.) 11. Respondent s voucher also reflected some episodes of double billing. On January 25, 1994, for example, from 2:05 p.m. until 2:30 p.m., she claimed that she was before Judge Kennedy and also in conversation with Mr. Avery. (BX 5; Tr. II ) 12. Respondent made time entries on her voucher in at least 15-minute blocks of time rather than the minute-by-minute procedure required by the Joint Committee on Judicial Administration. (BX 5, 7; Tr. II ) She asserted that she did not know that a minute-by-minute accounting was required. (Tr. II 262.) She further acknowledged that 20% of the time shown on the voucher was attributable to her inexperience (Tr. II 288), but that the voucher time did not represent all of the time that she spent on this case (Tr. II 228). 13. Respondent never received payment from the court for the voucher that she submitted. (Tr. II 255.) C. Bar Docket Number The Franklin Case 1. On or about August 30, 1995, Eugene J. Franklin, a correctional officer at the Correction Treatment Facility next to the D.C. Jail, retained Respondent to provide legal services to him regarding a possible medical malpractice claim arising from surgery performed on his throat. (BX F; Tr. I 27-30, , 125.) 2. Mr. Franklin testified that Respondent agreed to file a complaint on his behalf; that he advanced her a $125 filing fee, and that he agreed to a fee of $800 for the representation. (Tr. I 29-30, ) 3. Respondent asserted that she only agreed to investigate the claim, not to file a suit and that she had asked Mr. Franklin to pay the filing fee to demonstrate his ability to pay court costs and 11

12 commitment to go forward with a suit if she determined that he had a valid basis for a claim. (Tr. I , ) She further contended that she informed him that there would be other costs incurred in this matter and those costs would be his exclusive responsibility. (Tr. I ) 4. Respondent never provided Mr. Franklin with any written statement setting forth the scope of services and the basis or rate of the fee for those services. (Tr. I 117.) 8 5. On September 13, 1995, Mr. Franklin gave his first payment of $400 to Darryl Smith, an investigator for Respondent. Respondent initially maintained that her investigator was not authorized to receive this $400 payment on her behalf and that she did not receive this payment. (Tr. I ) Respondent later acknowledged receipt of the first $400 payment. (Tr. I 36, 117, 128.) 6. Mr. Franklin paid the second $400 payment directly to Respondent on September 28, 1995, at another meeting in the lobby of her apartment building. (BX 113; Tr. I 35-36, 117, , ) Mr. Franklin had no understanding that any additional fee would be owed. (Tr. I 79-80, 170.) 7. Respondent identified an oral surgeon as a potential expert witness for the claim and in November 1995, referred Mr. Franklin to him for medical evaluation. (RX G; Tr. I 59-60, ) Mr. Franklin visited the doctor in January 1996, and complained that Respondent failed to pay for the medical evaluation. (BX 105; Tr. I 133.) 8. Respondent testified that she spoke with the examining expert in January 1996 as to the results of his examination. (Tr. I ) He told her that he could find no evidence of medical malpractice. (Id.) Respondent did not discuss the results of her investigation with Mr Franklin until March or April of (Tr. I ) She did not tell him that the expert had recommended that Mr. Franklin see another physician and consider additional surgery, though it is not clear whether the expert was recommending those actions as palliative measures or for further evaluation of the potential medical malpractice claim. (Tr. I ) 9. Respondent also consulted with her father, a physician, who suggested that Mr. Franklin might be suffering from other conditions, including diabetes, which subsequently proved to be true. (Tr. I 69-70, ) 8 Bar Counsel did not charge Respondent with a violation of Rule 1.5(b), which requires that a writing setting forth the basis for a fee be provided to a new client. Had such a violation been charged, the Committee indicated that it would have found that it occurred. As the Committee noted, this case is a perfect example where compliance with such a rule would probably have avoided this dispute altogether. (Report of Hearing Committee Number Four ( Committee Report ) at 6-7 n.2.) 12

13 10. Mr. Franklin attempted to communicate with Respondent concerning her services from September 1995 to March (Tr. I ) He found that her telephone had been disconnected. (BX 101.) Although he located a new telephone number for her, he said that he did not receive a response to a number of messages that he left over a one-month period. (Id.) He was not able to reach Respondent by telephone except for one call, on a weekend, at which time she instructed him not to call her on weekends. (Tr. I 40.) 11. Mr. Franklin went to Respondent s home office, but he was unable to find her at home. (Tr. I 40.) On one occasion, he saw her crossing the street, but she did not recognize him. (Tr. I ) He then went home and tried to telephone her but got only the answering machine. (Tr. I 41.) 12. In late March or early April 1996, Respondent met with Mr. Franklin to inform him that she did not think that he had a good faith basis for proceeding further with a medical malpractice claim and would not pursue his case; however, Respondent testified that Mr. Franklin did not appear to understand her decision. (Tr. I ) 13. On or about May 13, 1996, Mr. Franklin sent a certified letter to Respondent at her last known place of business, 801 Pennsylvania Avenue, N.W., Suite 1006, Washington, D.C , requesting that Respondent return his fee, citing her failure to resolve the matter, to file suit, or to maintain communication with him. (BX 101, 105; Tr. I ) He called her and left a telephone message that addressed these issues. (BX 101.) She failed to respond, and the letter was returned as unclaimed. (BX 101, 105; Tr. I 42.) 14. On or about June 27, 1996, Mr. Franklin mailed another letter to Respondent at her 801 Pennsylvania Avenue address, again requesting that she return her fee. (BX 101.) Respondent failed to respond. (BX 105.) 15. After Mr. Franklin filed the complaint with Bar Counsel, Respondent called him and left a telephone number in New York. (Tr. I ) When he returned the call, he said that Respondent promised to send him a check for $600 ($125 for the filing fees and $475 for the legal fees), but the check never was received. (RX I; Tr. I 47-49, 71-72, , ) 16. Respondent said that she could not refund any amounts due and owing because Mr. Franklin would only accept a certified check. (Tr. I , ) 17. Respondent testified at the hearing that she had previously offered to return $600 to Mr. Franklin. (Tr. I 158, 193.) She further testified that she was prepared to return the $125 filing fee. (Tr. I 195.) On the second day of the hearing, Respondent gave Bar Counsel a check for $125 to return to Mr. Franklin. (RX S.) D. Bar Docket Number The Patterson Case 13

14 1. On or about April 1, 1995, Jenise I. Patterson retained Respondent to represent her in attempting to expunge a 1982 misdemeanor conviction for carrying a dangerous weapon (gun) and gave Respondent a check for $350, written on her daughter s account, as the fee for the representation. (Tr. I 249, 252, 254, 266, ) Respondent did not prepare a written retainer agreement nor did she make it clear whether the $350 was compensation only for the filing of a motion or for services beyond that. 2. When Respondent went to cash the $350 check, there were insufficient funds in the account to cover the check. (Tr. I 266, ) Respondent and Ms. Patterson exchanged cross words over the lack of funds in that account. (Tr. I 322.) Ms. Patterson subsequently paid Respondent $360 in cash. (Tr. I , 322.) 3. There is no evidence that Respondent communicated to her client anything about the actions she was taking on her behalf, or the status of the matter, until August 1996, nearly a year and a half after her engagement by complainant. (BX 201; Tr. I 257, , , 282, 327.) Respondent never orally explained the nature of her services or the time issues involved in filing a motion for appropriate relief. (Tr. I , , , 279, 282.) 4. In August 1996, Respondent saw Ms. Patterson on a street corner and informed her that the matter was done. (BX 201; Tr , 327.) Ms. Patterson was left with the impression that her criminal record had been expunged. (BX 201; Tr. I 260.) Respondent testified that she meant that the motion had been filed. (Tr. I ) 5. Ms. Patterson attempted without success to contact Respondent for an explanation or status update. (Tr. I 257, 278.) 6. The government objected to the motion to expunge. (RX D.) On September 9, 1996, the court denied the motion. (RX E.) Respondent testified that she left a telephone message for Ms. Patterson informing her of the court s action and asked their mutual friend, Darryl Smith, to deliver a copy of the court s order and the government s objections. (Tr. I 326.) Ms. Patterson saw the court s order denying the motion for the first time on October 14, (Tr. I 261, 280, 284.) E. Bar Docket Number The Bedney Case 1. While incarcerated at Lorton, Troy Bedney retained Respondent to represent him in a personal injury matter after he was allegedly injured in an accident while riding in a prison van. (BXX 2.) 2. After filing the required notice with the D.C. Corporation Counsel to pursue Mr. Bedney s claim and after investigating the claim, Respondent concluded that Mr. Bedney had suffered virtually no injury and that his case had no merit, so she did not pursue his claim further. (Id.) 14

15 3. Respondent admitted in a January 14, 1998 letter to Bar Counsel that she did not communicate to Mr. Bedney her decision to withdraw from his representation. (Id.) F. Bar Docket Number The Roberson Case 1. On or about April 3, 1996, Ms. Donna Roberson retained Respondent to appear on her behalf on April 5,1996 in English v. Roberson, LT , a case then pending for trial in the Landlord Tenant Branch of the Superior Court. 9 (BXX ) Respondent agreed to appear on April 5, 1996, the date the case was set for trial, for the sole purpose of seeking a continuance and to draft a motion to dismiss which would include a defense of retaliatory eviction. (BXX ; Dec. 14, 1999 Hearing Transcript ( Tr. III ) 19.) 2. Respondent requested a flat fee of $1, for her April 5, 1996 court appearance and for the preparation of the motion to dismiss. (BXX ; Tr. III ) The terms of this agreement were reduced to a written retainer agreement, signed by the parties on April 3, (BXX ; Tr. III 19.) On or about April 4, 1996, Ms. Roberson paid Respondent $1,000 in cash for her legal services and received a receipt for the money. (BXX 104; Tr. III 21.) 3. Respondent appeared in court on April 5, 1996, informed the court that she would not be available for trial until June 3, 1996 and obtained a continuance until that date, over the objection of the plaintiffs. (BXX 102; Tr. III 24.) 4. Respondent requested additional documents from Ms. Roberson to prepare the motion to dismiss. (BXX 102.) Respondent also requested additional fees in order to prepare for the trial set on June 3, 1996 and to perform any other additional services for Ms. Roberson. (BXX 101; Tr. III 34.) 5. Ms. Roberson prepared an appeal of the decision on her rent increase pro se and sought assistance in filing the appeal. (BXX 101; Tr. III ) On or about April 15, 1995, Ms. Roberson issued two $50 checks, made payable to Darryl Smith, an investigator and nonlawyer assistant to Respondent, to cover the expense of filing her appeal. (BXX 117; Tr. III 22-23, ) On or about April 20, 1996, Ms. Roberson issued a third check for $50 made payable to Darryl Smith. (BXX 117; Tr. III 95.) Darryl Smith never used the funds for filing expenses and never returned the $150 to Ms. Roberson. (Tr. III 23.) There was no evidence that Respondent was involved in the preparation or filing of the appeal nor was there any evidence that Darryl Smith was working on Respondent s behalf when he accepted the funds from Ms. Roberson. 9 Ms. Roberson was in a dispute with her landlords, Susan and Richard English, who had recently increased her rent, an action that Ms. Roberson was appealing. (BXX 108.) While she was pursuing the appeal, Ms. Roberson had failed to pay into the Court registry the full amount of her rent as established by the Court; consequently the landlords had filed a possessory action to evict Ms. Roberson from her apartment. (BXX 108; Tr. III 16.) The trial on the possessory action was set for April 5,1996. (BXX 103.) 15

16 6. Ms. Roberson refused to pay Respondent additional legal fees. (BXX 101; Tr. III 71.) Ms. Roberson sent Respondent a letter dated April 21, 1996, terminating Respondent s services and demanding the return of the $1,000 retainer. (BXX 101, 106; Tr. III 26.) Respondent never returned the $1,000 retainer or any portion of it. (BXX 101; Tr. III 41.) 7. On May 9, 1996, Ms. Roberson filed, pro se, a motion for continuance in her Landlord Tenant case, informing the Court that Respondent had withdrawn from the case. (BXX 107; Tr. III 28.) Upon learning of the filing, Respondent filed an Emergency Motion to Withdraw From Representation To Preserve Trial Schedule of June 3." (BXX 109.) In her letter to the Court, she maintained that she was withdrawing because no retainer agreement or fee has been forthcoming and because her client had failed to respond to her numerous contacts. (Id.) 8. On May 22, 1996, Judge Rufus King held a conference call on the cross motions. (BXX 112.) On May 23, 1996, Respondent faxed to the judge s chambers the April 21, 1996 letter from Ms. Roberson that terminated Respondent s services. (Id.) On May 28, 1996, the judge issued an order denying Respondent s Motion to Withdraw unless Ms. Roberson decided to proceed pro se or obtained new counsel and denying Ms. Roberson s motion for a continuance of the June 3, 1996 trial date. (Id.) 9. At the end of May 1996, Ms. Roberson retained new counsel to appear on her behalf on June 3, 1996 in the landlord tenant matter. (BXX 102; Tr. III 86.) She did not inform Respondent that she had retained new counsel. (BXX 102.) Respondent appeared in court on June 3, 1996, but she did not participate in Ms. Roberson s trial. (BXX 102; Tr. III ) G. Bar Docket Nos and Rule XI, 2(b)(3) and (4) Violation 1. Mr. Franklin filed his complaint on July 3, (BX 101; Tr. I 42-43, 88.) Bar Counsel mailed a copy of the complaint to Respondent at her last known business address as listed with the District of Columbia Bar, at 801 Pennsylvania Avenue, N.W., Suite 1006, Washington, D.C , with a request for a response. (BX 102; RX A; Tr. I ) Respondent failed to respond, and the letter was not returned. (Tr. I 89, 102.) 2. On or about July 29, 1996, Bar Counsel mailed a second letter to Respondent at her 801 Pennsylvania Avenue address, reminding her of her obligation to respond to the inquiry within five days. (BX 103; RX A; Tr. I ) Respondent failed to respond, and the letter was not returned. (Tr. I 90, 102.) 3. On or about August 14, 1996, Bar Counsel filed a motion with the Board to compel Respondent to respond to the complaint. (BX 104; Tr. I ) Bar Counsel mailed a copy of the motion, together with attachments, to Respondent at her 801 Pennsylvania Avenue address. (BX 104; RX 16

17 A; Tr. I 91.) The letter was not returned, and Respondent did not respond to the motion. (Tr. I 92, 102.) 4. On or about August 29, 1996, Bar Counsel issued a subpoena to Respondent requesting certain documents. (BX 106; Tr. I ) On September 18, 1996, the Board granted Bar Counsel s motion to compel and directed Respondent to respond to the complaint within 10 days of the Board s order. (BX 107; Tr. I ) The Board mailed a copy to Respondent at her 80l Pennsylvania Avenue address. (BX 107; RX A.) 5. On September 23, 1996, Respondent was served personally with the Board s order by a professional process server at the 801 Pennsylvania Avenue address to which the other documents had been mailed. (BX 108, 109; Tr. I 92-93, , 191.) Respondent came herself that same day to the Office of Bar Counsel and acknowledged receipt of the subpoena and the Board s order. (Tr. I ) She neither honored the subpoena nor filed a motion to quash the subpoena. (Tr. I 191.) 6. At the time of her visit to Bar Counsel s office on September 23, 1996, Respondent provided a letter noting a new address of 18 Gramercy Park South, Apt. No. 1613, New York, New York, (BX 110; Tr. I 94.) She turned over to Bar Counsel s receptionist a copy of the Board s order, which had been mailed on September 19, with the notation that it had been received at her Washington, D.C. address on September 21, (BX 110; Tr. I 93-95, 152, 185.) In addition, she turned over copies of Bar Counsel s subpoenas in unopened certified-mail and regular-mail envelopes bearing the notation that they had been received on September 23, (BX 110; Tr. I 95-97, 152, ) 7. On March 17, 1997, Bar Counsel, in response to a telephone message from Respondent using a local number, sent a letter urging her to file a response. (BX 117, 205(d); Tr. I 97-98, ) No written response to the Board s order or to Bar Counsel s request for a response was received. (Tr. I , 191.) 8. Respondent filed her answer to Mr. Franklin s disciplinary complaint on November 26, 1997, and did not provide additional details until she testified at the hearing on October 14, (BX F; Tr. I 46, , 335.) 9. Ms. Patterson filed her complaint against Respondent with the Office of Bar Counsel on February 18, (BX 201; Tr. I 259). On February 21, 1997, Bar Counsel mailed Respondent a copy of the complaint with a request for a response to the Gramercy Park address in New York City, the address which she had left with Bar Counsel on September 23, (BX 202, 207; Tr. I 294.) Respondent again failed to respond, and the letter was not returned by the postal service. (Tr. I 294, 335.) 17

18 10. On or about February 21, 1997, Respondent appeared with counsel for a conference with Deputy Bar Counsel. (BX 206; Tr. I 331, 338.) During the meeting, Respondent personally received a copy of the Patterson complaint. (BX 206; Tr. I 297, 331, 338.) She requested and received an extension to March 14, 1997 to file her response. (BX 206; Tr. I , 339.) On March 14, 1997, she requested and received a further extension to March 21, (BX 206; Tr. I 295, 340.) 11. On March 17, 1997, Bar Counsel mailed a letter to Respondent at her Gramercy Park address, advising her that her request for an extension until March 21, 1997 had been granted. (BX 204; Tr. I , 342.) Respondent failed to respond, and the letter was not returned. (Tr. I 335.) On March 17, 1997, Respondent delivered to Bar Counsel by hand a letter using the 801 Pennsylvania Avenue, N.W. address and a letter from Joseph Conte, Esquire, requesting an additional 30-day extension in which to respond. (BX 205; Tr. I , 342.) 12. On or about April 28, 1997, Bar Counsel filed a motion with the Board to compel Respondent to respond to the complaint. (BX 205; Tr. I , 342.) Bar Counsel s motion to compel included copies of all of Respondent s requests for extensions and motions for appointment of counsel. (BX 205; Tr. I , 342.) Bar Counsel mailed a copy of the motion, together with attachments, to Respondent s Gramercy Park address. (BX 205; Tr. I 296.) The letter was not returned, and Respondent did not respond to the motion. (Tr. I 302.) 13. By order of May 19, 1997, the Board granted Bar Counsel s motion and directed Respondent to respond to the complaint within 10 days of the Board s order. (BX 206.) On May 20, 1997, the Board mailed a copy of its order to Respondent at the Gramercy Park address. (BX 206.) Respondent did not file a response to the Board s order. (Tr. I 335.) III. Conclusions of Law A. Respondent s Conduct in Bar Docket Numbers and Violated Rule 1.4(a) The Committee found that Respondent violated Rule 1.4(a) when she failed to respond to the calls from her clients in the Franklin and Patterson cases, when she failed to keep her clients reasonably informed of the status of their matters, and when she failed to promptly comply with reasonable requests for information. After hearing testimony from Mr. Franklin, Ms. Patterson, and Respondent, the Committee concluded that Respondent received the messages and communications that were left by her clients in both cases and, for whatever reason, simply chose not to respond to Ms. Patterson. With respect to Mr. 18

19 Franklin, Respondent delayed her response to him on the issue of pursuing his case until at least late March or April 1996, and she further delayed in responding to his requests to return the fees he had paid until about April 1, 1997, when she offered to return his fees but never did so. Addressing a respondent s neglect of two client matters that led to a violation of DR 6-101(A)(3) in In re Santana, 583 A.2d 1011, 1013 (D.C. 1990)(per curiam), the Court incorporated the Board s Report which contained the following language: Lawyers cannot simply disappear and leave their clients in the lurch. Clients have a right to expect that their legal interests are being represented. Lawyers have an obligation not only to communicate with their clients, but to let them know if, for some reason, they can no longer handle their cases. In this case, as was the case in Santana, Respondent failed to meet this important obligation, as shown by Bar Counsel by clear and convincing evidence. 10 We conclude that a violation of Rule 1.4(a) has been proven in the Franklin and the Patterson cases. B. Respondent s Conduct in Bar Docket Numbers and Violated Rule 1.15(d) The Committee concluded that Respondent violated Rule 1.15(d) in the Franklin case when she decided not to file a lawsuit on Mr. Franklin s behalf and then failed to return the $125 filing fee that was pre-paid by Mr. Franklin until the second day of the hearing. 11 Respondent testified that she was prepared 10 The Board notes that the facts in the Bedney and Roberson cases show a similar pattern of conduct, even though Respondent was not charged with violations of Rule 1.4(a) in those cases. 11 Mr. Franklin also asked Respondent to return all of the $800 he had paid her to file a complaint on his behalf. Respondent testified that the $800 was intended to be compensation for investigating whether there was a basis for a claim and was not intended to be the fee for pursuing the case as well. Mr. Franklin testified that the $800 was intended to pay for the work on the lawsuit. There was no written retainer agreement. The Committee did not make any finding about the amount of any legal fee to be returned. 19

20 to return $600 to Mr. Franklin in April 1997 (i.e., $125 for the filing fee and $475 for unearned legal fees), but did not do so because the complainant would only accept a certified check for the money. Neither Respondent nor Bar Counsel took exception to the Committee s finding that Respondent violated Rule 1.15(d) when she did not return the filing fee to Mr. Franklin until the second day of the hearing. Since this issue is not contested, we conclude that a violation of Rule 1.15(d) has been proven by clear and convincing evidence. The Ad Hoc Committee concluded that Respondent violated Rule 1.15(d) when she failed to return $700 in unearned fees to Ms. Roberson. There is agreement that Ms. Roberson paid Respondent $1,000 pursuant to a signed flat fee retainer that required Respondent to appear at a hearing on April 5, 1996 and file a motion to dismiss. There is also agreement that Respondent appeared at the hearing on April 5, 1996, but never filed the required motion to dismiss. The reason that the motion to dismiss was not filed is a topic of some dispute. Respondent claims that initially she did not receive the necessary information to prepare the motion to dismiss and then, before the motion could be prepared, her services were terminated by her client. Ms. Roberson claims that Respondent refused to prepare the motion or appear at the June 3, 1996 trial without additional compensation, leaving Ms. Roberson with no choice but to terminate her arrangement with Respondent and seek new counsel. In pleadings and through counsel at oral argument, Respondent acknowledges that she did seek additional compensation for the additional work that her client wanted her to perform above and beyond the work paid for by the retainer; but she also maintains that she performed well in excess of $1,000 worth of legal work for her client in preparation for the hearing that was continued until June 3, 1996, even though Ms. Roberson retained new counsel to represent her at the hearing. 20

21 We do not need to decide the underlying reasons for the dispute between Respondent and her client to make a finding on the Rule 1.15(d) violation. The record evidence is clear and convincing that Ms. Roberson did not receive all of the legal services that Respondent agreed to provide for the $1,000 flat legal fee. The language of Rule 1.15(d) is clear that an attorney has an obligation to return any portion of an unearned fee to a client when the representation is terminated. Respondent did not perform all of the services she was paid to perform under the flat fee retainer agreement before her services were terminated by her client; consequently, she is not entitled to retain all of the fees that she was paid. We conclude that Bar Counsel has proven by clear and convincing evidence that Respondent failed to return the unearned fees in the Roberson case and violated Rule 1.15(d). C. Respondent s Conduct in Bar Docket Numbers , and Violated Rule 1.16(d). Both Hearing Committees concluded that Respondent violated Rule 1.16(d) on three separate occasions. First, the Committee concluded that Bar Counsel demonstrated by clear and convincing evidence that Respondent did not notify Mr. Franklin in a timely fashion of her decision not to pursue his matter and did not return the $125 filing fee that he had prepaid until the second day of the hearing in violation of Rule 1.16(d). Respondent did not take exception to this finding. We agree that the record shows that rather than filing suit in Mr. Franklin s case, Respondent advised Mr. Franklin to seek other counsel on or about June 1996 and again in April 1997, shortly before the statute of limitations was due to run on his claim. It is also not disputed that Respondent did not respond to Mr. Franklin s demands to refund the $800 fee that he paid for the representation or the $125 filing fee that he advanced for filing his lawsuit until after Mr. Franklin filed his complaint with Bar Counsel. 21

22 The record is also clear that on or about April 1, 1997, when Respondent learned that Mr. Franklin had lost his job and had experienced health problems, she offered to return $600 (i.e., $475 in legal fees and $125 for the filing fee) because he was unhappy with the way that she had handled his case. (Tr. I ) We conclude that Respondent s failure to return Mr. Franklin s filing fee for more than 29 months after Respondent decided to withdraw from the representation and her continuing failure to return the $475 in unearned legal fees that she had promised to return is a clear violation of Rule 1.16(d). Second, the Ad Hoc Committee found by clear and convincing evidence that Bar Counsel proved that Respondent did not notify Mr. Bedney in a timely fashion of her decision not to pursue his matter in violation of Rule 1.16(d). Bar Counsel s proof consisted of Mr. Bedney s complaint coupled with Respondent s admission in her January 14, 1998 response to Bar Counsel during the investigative phase of the case. Respondent took exception to the Ad Hoc Committee s findings and argued to the Board that Bar Counsel had failed to make a showing of a violation by clear and convincing evidence for three reasons. First, Respondent argued that Mr. Bedney had not given sworn testimony in the complaint and therefore the weight attributed to the complaint by the Ad Hoc Committee was unwarranted. Respondent provides no legal authority for her position. Second, Respondent argued that Bar Counsel failed to show how the client s interests were not protected upon termination of Respondent s representation. Third, Respondent argued that the Ad Hoc Committee should not have treated Respondent s January 14, 1998 response to Bar Counsel in the investigative phase of the case as a concession and should have relied on her Answer to the Specification of Charges that denied the violation of Rule 1.16(d). 22