DISTRICT of COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY AD HOC HEARING COMMITTEE : In the Matter of : : TAMLA T. SCOTT, : Respondent, : Bar Docket No. 135-07 : Member of the Bar of the District of : Columbia Court of Appeals. : Bar Number: 496724 : Date of Admission: 3/6/06 : : HEARING COMMITTEE REPORT INTRODUCTION Respondent Tamla T. Scott is an experienced practicing attorney who applied for admission to the District of Columbia Bar on the strength of her North Carolina Bar membership, but failed to provide honestly and completely the information that the District of Columbia Committee on Admissions had requested. Respondent knew that there was at least one grievance pending against her in North Carolina, and that three additional fee disputes were ripening into grievances due to Respondent s failure to cooperate with the fee dispute program in North Carolina. 1 Respondent did not disclose these North Carolina disciplinary proceedings to the Committee on Admissions, and falsely stated in a notarized Supplemental Questionnaire on the eve of her swearing-in that there were no pending charges or complaints against her. Bar Counsel charged and proved that Respondent violated Rules 8.1(a), 8.1(b) and 8.4(c). Based upon the considerations that the Court has found relevant to a sanction determination, the 1 Ultimately the North Carolina disciplinary proceedings led to a three-year suspension; but that discipline did not occur until after the violations at issue here. A separate reciprocity proceeding is pending concerning the North Carolina suspension.
Hearing Committee recommends that Respondent be suspended for nine months and that she be required to prove fitness before she is reinstated. I. PROCEDURAL HISTORY Bar Counsel charged Respondent with violating District of Columbia Rules of Professional Conduct (the Rules ) 8.1(a) (knowingly made false statement of material fact in connection with a Bar admission application); 8.1(b) (failed to disclose, knowingly failed to respond); and 8.4(c) (dishonesty). A pre-hearing conference was held on June 4, 2008 before the Chair of Ad Hoc Hearing Committee and the hearing scheduled for June 18, 2008. At the June 18 hearing the Chair of the Ad Hoc Hearing Committee recused herself due to newly disclosed information concerning Respondent s current employment. The hearing was rescheduled for July 16, 2008 and a substitute Member of the Ad Hoc Hearing Committee was duly appointed. A hearing was held on July 16, 2008, before an Ad Hoc Hearing Committee (the Hearing Committee ), composed of John C. Peirce, Esquire, Chair; Burnette Williams. II, Esquire; and Suzanne Kramer, Public Member. Bar Counsel was represented at the hearing by Elizabeth A. Herman, Deputy Bar Counsel. Respondent appeared pro se. Prior to the hearing, Bar Counsel submitted Bar Counsel s exhibits BX A-BX D and BX 1- BX 14 and a document entitled Stipulations. 2 The Hearing Committee received all of Bar Counsel s exhibits and the Stipulations into evidence. Respondent objected to BX 4, BX 5, BX 6, BX 9, BX 10, and BX 11 on grounds of relevance. The Hearing Committee admitted the exhibits as evidence of fee disputes and grievance notices the North Carolina Bar sent to Respondent before her admission to the District of Columbia Bar. See Stip. 11; Tr. 9-16. Bar Counsel rested after the exhibits and Stipulations were received into evidence. Respondent testified herself but did not submit exhibits or present the testimony of any witness. 2 BX refers to Bar Counsel s Exhibits; Tr. Refers to the transcript of the hearing on July 16, 2008; Stip. refers to the written stipulations accepted into evidence. 2
Upon conclusion of the first stage hearing, the Hearing Committee made a preliminary, nonbinding determination that Bar Counsel had proven, by clear and convincing evidence, at least one of the ethical violations set forth in the Specification of Charges. Tr. 94-95. Bar Counsel submitted evidence of prior discipline at the second stage of the bifurcated hearing. BX 15, BX 16. Respondent testified in mitigation. II. PROPOSED FINDINGS OF FACT A. Respondent s Application to the D.C. Bar 1. Respondent is a member of the Bar of the District of Columbia Court of Appeals ( Bar ), having been admitted on March 6, 2006, and assigned Bar number 496724. BX A. 2. Before applying to be a member of the Bar, Respondent had been a practicing attorney in North Carolina for ten years. Tr. 18 (admitted in North Carolina in 1996). Respondent had a busy practice in North Carolina involving primarily family law, as well as federal criminal cases and some civil matters. Tr. 18-19. 3. During the summer of 2005, Respondent moved to the District of Columbia and provided a Maryland Post Office box address to the North Carolina Bar. Stip. 8. Respondent was aware that she needed to provide an address to the North Carolina Bar so that they could reach her if need be. Tr. 58. 4. On August 30, 2005, Respondent completed her application for admission to the Bar, signed it, swore to its truth, and had the document notarized. Respondent applied as a member in good standing of another Bar. BX 1 (Bates Stamp 2). Respondent swore to the application under the declaration that stated, I have read the foregoing document and have answered all the questions fully and frankly. BX 1 (Bates Stamp 5); Tr. 22. The District of Columbia Court of Appeals Committee on Admissions ( COA ) received the application on August 31, 2005. BX 1 (Bates Stamp 3, 5); Stip. 2. 3
5. Question 10 on Respondent s application asked the following questions, and Respondent answered as follows: 10A. Have you ever been disbarred, suspended, censured, or otherwise reprimanded or disqualified as an attorney? Answer: Yes 10B Have you ever been the subject of any charges, complaints, or grievances (formal or informal) concerning your conduct as an attorney, including any now pending? Answer: No BX 1 (Bates Stamp 4) 6. As required by the application, Respondent further answered Question 10A by accurately stating that she had received a Reprimand on February 6, 2003, issued by the North Carolina State Bar for failing to respond in a timely manner to a grievance (although the grievance itself was ultimately dismissed). Id. 7. The answer to question 10B was literally wrong in that Respondent had been the subject of charges, complaints, or grievances, and had received the Reprimand disclosed in the answer to question 10A. However, Respondent had disclosed the substance of the 2003 North Carolina discipline in answer to Question 10A. Question 10B is significant because it put Respondent clearly on notice of the COA s interest in disclosure of pending disciplinary matters, specifically including grievances. 8. The COA acknowledged Respondent s application by letter dated September 22, 2005. BX 1 (Bates Stamp 1). In the acknowledgment letter, the COA informed Respondent of her obligation to inform the Committee by letter of any change in address, employment, or any other circumstance (e.g., bar admissions, disciplinary matters, civil and criminal litigation, credit problems, etc.) Id. 4
9. Respondent received this September 22, 2005 letter from the COA and was aware of her obligation to update the COA. Tr. 40-41. However, in a deposition which took place on September 25, 2007, in the North Carolina disciplinary matter, Respondent denied that she knew she had an obligation to supplement the D.C. Bar application with new information: I don t remember reading anything saying that I had an obligation to do that, and from what I understand, if anything happens in North Carolina, they will report it to D.C., and then I would have to respond to D.C. s inquiry, if they have one. Q. So you don t think there was any obligation to supplement your application even while it was pending. A. No. BX 14 (Bates Stamp 50-51). 10. Between May and September 2005, four of Respondent s former clients in North Carolina filed Petitions for Resolution of Disputed Fees ( fee dispute petitions ) with the North Carolina State Bar. Stip. 6; BX 16 (Findings 9, 20, 28, 37). One of these former clients, Jennifer Goodman ( Goodman ), filed her fee petition in May 2005. BX 3. Therefore, before Respondent filed her application with the COA on August 31, 2005, she was aware that Goodman had initiated fee dispute matters in North Carolina, which were pending. BX 14 (Bates Stamp 49). The other three former clients, Trina White ( White ), Andrea Smith ( Smith ) and Jeffrey Porter ( Porter ) filed fee disputes in September 2005. BX 4, 5, 6, 16 (Findings 20, 28, 37). 11. The North Carolina State Bar referred the matters to the Fee Dispute Resolution Committee, which requested that Respondent file written responses to these fee dispute petitions. Stip. 7. Respondent received notice of these petitions but she failed to submit, in a timely manner, written responses, as required. Tr. 77-78, 84. 12. Because Respondent failed to cooperate with the Fee Dispute process, the Fee Dispute Resolution Committee could not resolve the matters and, therefore, referred them to the North Carolina Bar. Stip. 7; BX 3, 4, 5, 6. The fee dispute matters were closed as fee disputes between 5
August 2005 and December 2005. See BX 3 (Bates Stamp 11, Goodman case, August 9, 2005) and BX 12 (Bates Stamp 38) (Goodman case, Lay member s letter); BX 4 (Bates Stamp 12, November 1, 2005, White case); BX 5 (Bates Stamp 20, December 6, 2005, Smith case). 3 13. Respondent was aware that fee disputes that are not resolved are referred to the North Carolina Bar Grievance Committee as grievances. Tr. 63; see also BX 15. Respondent was aware that she had not timely responded to the four fee dispute petitions filed against her between May and September 2005. Tr. 63-64. All responses had been due before the end of December 2005. See BX 5 (Bates Stamp 13, written responses due within 15 days of receipt of letter of notice). 14. On October 22, 2005, Respondent received a Letter of Notice from a Chair of the Grievance Committee of the North Carolina State Bar. The letter referred to the Goodman case, one of the four matters that had previously been a fee dispute matter and stated: This is to advise that a grievance alleging misconduct has been established against you. BX 8. 15. Respondent was required to respond to the grievance within 15 days of receipt of the letter of notice. BX 8. Respondent did not respond in a timely manner, but she did eventually respond by letter dated November 23, 2005. BX 13. In her response, Respondent referred to the grievance as a grievance at least three times. Id. Respondent testified in her deposition in the North Carolina disciplinary matter: Question: So, it appears that you do understand at this point, that this is a grievance matter and not merely a fee dispute matter? Answer: Yeah. BX 14 (Bates Stamp 56). 3 BX 6 involving the Jeffrey Porter matter does not show a date when the fee dispute became a grievance. However, there was an October 2005 notification letter to Respondent in the Porter fee dispute case and by February 2006 four grievances are mentioned in the North Carolina Bar s letter to Respondent. BX 11 (Bates Stamp 36). 6
16. The North Carolina State Bar attempted to notify Respondent of the other grievance investigations but the North Carolina Bar s certified letters, addressed to the addresses provided by Respondent, were returned as unclaimed. BX 11; BX 16 46; Stip. 11. On at least one occasion Respondent received a notification from the Postal Service, which she described as an orange slip, referring to several certified letters that had already been returned as unclaimed. Tr. 59-60. 17. On or about January 11, 2006, Respondent was told by a North Carolina State Bar investigator, on the telephone, that the Bar s certified letters to Respondent had been returned to them. Respondent provided the investigator her home address. Tr. 60-61. 18. On February 1, 2006, the North Carolina State Bar sent Respondent a letter notifying her of the other three grievance investigations and requesting written responses to all of them by a date certain. The February 1, 2006 letter was sent to the home address provided by Respondent. This certified letter to Respondent at her home address was unclaimed and returned to North Carolina. BX 11, BX 16 49-50. 19. On February 21, 2006, the COA sent Respondent a Supplemental Questionnaire with a cover letter. BX 1 (Bates Stamp 6). On March 4, 2006, Respondent signed the Supplemental Questionnaire and had her signature notarized. BX 1 (Bates Stamp 8). Questions 5 of the Supplemental Questionnaire asked the following question and was answered by Respondent as follows: 5. Are any charges or complaints now pending concerning your conduct as an attorney, as a member of any other profession, or as a holder of any public office? Answer: No BX 1 (Bates Stamp 8); Stip. 15. 7
20. Respondent knew from the letter and questionnaire that if she answered the above question in the affirmative, she would not be sworn in on the date specified in the letter and her admission would be stayed while the COA reviewed her application. BX 1 (Bates Stamp 8); Tr. 51, 70. 21. On March 6, 2006, Respondent submitted the Supplemental Questionnaire to the COA and was sworn into the District of Columbia Bar. 22. Before Respondent was sworn into the D.C. Bar, she failed to disclose to the COA that North Carolina had initiated an investigation into any pending grievance. Stip. 16, 17. Moreover, she did not submit to the COA an amended response to Question 10(B) of the COA application. Stip. 18. 23. On April 3, 2006, Respondent was served by a professional process server with the North Carolina State Bar letter of February 1, 2006. Stip. 19. 24. On February 18, 2008, Respondent consented to findings of fact, conclusions of law, and an order of discipline before the Disciplinary Hearing Commission of the North Carolina State Bar. North Carolina State Bar v. Scott, 07 BHC 4. BX 16. The order of discipline imposed a three year suspension of Respondent s license to practice law, with the provision that after serving one year of active suspension, Respondent may apply for a stay of the remaining period of suspension. Stip. 20; BX 16. B. Credibility 25. Respondent testified and claims that she did not disclose the pending grievance to the COA because she viewed it as a non-disciplinary fee dispute matter. Tr. 26, 30. We find this testimony was deliberately false in view of Respondent s own letter of November 23, 2005, in which she repeatedly used the term grievance and acknowledged that the matter had evolved from a fee dispute into a grievance. BX 13. Further, Respondent was familiar with the North Carolina Fee Dispute process and the fact that the Goodman fee dispute had become a disciplinary matter. BX 8
15. Respondent had experienced such a situation and received a Reprimand in 2003, just two years prior to the conduct at issue. 26. Respondent testified that she had no idea that the other three fee disputes had become grievances until after she was sworn into the Bar. Tr. 22; see also Tr. 25 (Respondent testifies that the Goodman situation is the only one of which she had knowledge). This testimony is not credible. Respondent knew that one of the four fee dispute matters had become a grievance because of her failure to respond; she knew that she had not responded timely to the other three fee dispute letters; she knew that she was receiving orange slips from the Postal Service for certified letters that had been returned as unclaimed; and she knew that the North Carolina State Bar investigator had told her on about January 11, 2006 that certified mail to her from the North Carolina State Bar was being returned unclaimed. The Hearing Committee finds that Respondent knew or should have known that there were multiple grievances pending before the North Carolina State Bar at the time she submitted the Supplemental Questionnaire and was sworn into the Bar on March 6, 2006. 27. Respondent testified that she attempted to rectify her mistake in failing to disclose the grievance to the COA by writing to the D.C. Bar. Tr. 20, 21, 34. This testimony was disingenuous and reflects negatively on Respondent s credibility. Respondent s August 6, 2007 letter was addressed to Bar Counsel, not the COA. BX D (third page); Tr. 36. The letter was written after Bar Counsel had opened an investigation against Respondent and demanded a written response from her. Id. Moreover, Respondent s August 6, 2007 letter does not rectify the mistake. In Respondent s letter, she informed Bar Counsel that at the time she answered the Supplemental Questionnaire she was involved in three separate fee disputes and that fee disputes are not related to the conduct of the attorney. Id. Respondent further stated: After I received my D.C. License, I was informed that my failure to adequately respond to the fee disputes led the N.C. State Bar to institute grievances against me for failing to adequately respond. 9
BX D (third page) (emphasis added). 28. This last statement is patently false and Respondent knew it. Respondent knew that the Goodman fee dispute had become a grievance at least four months before she was sworn into the Bar, and she knew or should have known other grievances were pending in North Carolina by the time she was sworn in. She certainly knew it at the time she wrote Bar Counsel on August 6, 2007. Respondent s letter of August 6, 2007, demonstrates her willingness to distort the facts to suit her needs, whether it be in response to the COA or to the Bar Counsel. III. PROPOSED CONCLUSIONS OF LAW A. Rule 8.1(a) (Knowingly False Statement of Material Fact in Connection With a Bar Admission Application) Rule 8.1(a) states: An applicant for admission to the Bar, or a lawyer in connection with a Bar admission application... shall not (a) knowingly make a false statement of material fact.... When Respondent filled out the COA s application, she was aware that it required information about her employment and professional history, that references and releases were required to verify that her character and professional life had been above reproach, and that she was required to swear to the truth of her statements. See BX 1; Tr. 37. Respondent also was aware of the requirement that she update the COA and answer all questions truthfully. Tr. 40-41. Respondent testified that she did not take the admissions process lightly. Tr. 91. The information that Respondent initially provided on the application was substantially truthful when Respondent submitted the application in August 2005. However, by October 2005, Respondent was aware that her pending Bar application was no longer accurate. Respondent had an ethical obligation to update the COA with the new information that a grievance (and eventually four grievances) had been filed against her by the North Carolina State Bar. This duty to inform the COA was spelled out in the COA s letter to Respondent dated September 22, 2005. BX 1. Between 10
October 2005 and March 2006, Respondent did not inform the COA of the pending North Carolina grievances. Instead, Respondent filled out, signed, and notarized the COA s Supplemental Questionnaire in which she affirmatively denied that a charge or complaint was pending against her. BX 1 (Bates Stamp 8). Respondent s negative answer to Question 5 on the Supplemental Questionnaire was a false statement of material fact. The questions on the Supplemental Questionnaire were clearly designed to make sure that, before an applicant is admitted to the Bar, the COA is aware of any circumstances that the COA should consider as to the applicant s fitness. A pending grievance is the type of information that the COA had a right to know and that Respondent should have disclosed. Respondent s effort to read question 5 of the Supplemental Questionnaire so narrowly that a grievance is not encompassed within the term complaint is neither objectively reasonable nor honest. Respondent asks the Hearing Committee to find that the COA s Supplemental Questionnaire did not request information about pending disciplinary grievances, but only about civil charges or complaints. Respondent s self-serving interpretation is not justified, logical or reasonable in view of the entire application process and the COA s obvious and clear aim to obtain all relevant information. In In re Shorter, 570 A.2d 760, 768 (D.C. 1990), the Court found that an attorney s hypertechnical responses to an investigator s questions were dishonest. The Court stated: Given the technically true nature of respondent s answers to questions posed by Revenue agents, and his abstinence from actual false statements or affirmative acts of concealment, we decline to describe his financial arrangements and his parsimonious dissemination of information as either fraudulent, deceitful, or misrepresentative, which all describe degrees or kinds of active deception or positive falsehood. See supra note 12. We deem this issue a close one, however, and thus experience no difficulty in characterizing these arrangements as evincing a lack of integrity and straightforwardness, and therefore dishonest. By his own acknowledgment respondent knew what information the IRS was after, but for his own benefit refrained from supplying that information even when asked questions that grazed the truth. As long as the IRS did not ask just the right questions, respondent was 11
prepared to deprive it of the right answers. This conduct was dishonest in character, and thus violated DR 1-102(A(4). In re Shorter, 570 A.2d at 768. The Court s rule governing admission to the Bar of members of the Bar of other jurisdictions without examination makes clear that such admission is extended only upon proof of good moral character as it relates to the practice of law.... D.C. App. R. 46 (c)(3). Here, Respondent applied under the provision allowing admission to an attorney who [h]as been a member in good standing of a Bar of a court of general jurisdiction in any state or territory of the United States for a period of five years immediately preceding the filing of the application.... D.C. App. R. 46 (c) (3)( i); BX 1 (Bates Stamp 2). As an applicant for admission, Respondent is charged with knowledge of the rule providing that [n]o applicant shall be certified for admission by the Committee [COA] until the applicant demonstrates good moral character and general fitness to practice law. D.C. App. R. 46(d). Further, the rule provides that [t]he applicant shall have the burden of demonstrating by clear and convincing evidence, that the applicant possess[es] good moral character and general fitness to practice law in the District of Columbia. D.C. App. R. 46(e). Respondent falsely answered Question 5 of the Supplemental Questionnaire; she did so knowingly; and she did so in connection with her application. There can be no doubt that the false information involved a material fact. The requirement of D.C. App. R. 46(e) that the applicant for admission demonstrate, by clear and convincing evidence, that he/she possesses good moral character and general fitness to practice law, and the COA s repetition of questions involving Bar disciplinary matters and specifically advising applicants of the need to update a change of condition involving disciplinary matters, shows the importance of this information. In a prior case in which the Board found violations of Rules 8.1(a), 8.1(b), and 8.4(c), the Board said the following as to materiality of the information provided or withheld during the admissions process: 12
The information withheld and misrepresented need not, in and of itself have automatically led to denial of admission; it is sufficient that it would have put the bar authorities on notice of relevant information and led to further inquiry into Respondent s character and fitness. In re Regent, Bar Docket No. 235-95 at 29 (BPR Jan. 22, 1999) (footnote omitted), sanction recommendation, 741 A.2d 40 (D.C. 1999). In another case, the Court stated: It is common knowledge in the legal profession that bar application forms are designed to review an applicant s character and fitness to practice. Further, it can hardly be contended that the oath itself was ambiguous; even if any doubt can be harbored about the scope of information that might reflect unfavorably on respondent s application, there can be no doubt that complaints and prosecution for professional misconduct fell well within its frontiers. In re Rosen, 570 A.2d 728, 729 (D.C. 1989) (describing Maryland s oath on an admission form comparable to the Supplemental Questionnaire executed by Respondent). In view of the COA s requests for information, formal or informal, about disciplinary matters, it is clear, and would have been clear to Respondent, that a pending grievance would have been relevant, could have led to further inquiry, and was within the scope of information sought by the COA. Respondent s negative response on the Supplemental Questionnaire was false, material and knowingly made. Bar Counsel proved, by clear and convincing evidence, that Respondent violated Rule 8.1(a). B Rule 8.1(b) (Failure to Disclose a Pending Grievance and Knowing Failure to Respond Reasonably to a Lawful Demand for Information from an Admissions Authority) Rule 8.1(b) states: An applicant for admission to the Bar, or a lawyer in connection with a Bar admission application... shall not... (b) fail to disclose a fact necessary to correct a misapprehension known by the lawyer or applicant to have arisen in the matter, or knowingly fail to respond reasonably to a lawful demand for information from an admissions... authority.... 13
Based upon the same facts as stated in Section II A, Respondent also violated Rule 8.1(b). Respondent knew that she had not disclosed any pending grievances to the COA when she submitted her application. Respondent knew from the COA s letter of September 22, 2005 that she was obligated to inform the COA of any charged circumstances, including bar disciplinary matters or even credit problems. BX 1. Respondent knew by October 2005 that there was at least one grievance pending against her in North Carolina. Respondent still did not correct or amend her application. Respondent s failure to correct or amend her application violated the mandates of Rule 8.1(b) that an applicant must correct a misapprehension and must respond reasonably to a lawful demand for information. It was not reasonable for Respondent to fail to disclose the pending grievance during the pendency of her Bar application. In In re Small, 760 A.2d 612 (D.C. 2000), the attorney truthfully denied, when he filled out the COA application, that he had ever been cited, arrested, charged or convicted for any violation of any law. 760 A.2d at 613. Small did not update the COA when he was arrested for vehicular homicide. After Small s arrest, Small filled out the Supplemental Questionnaire and responded in the negative to the question, Have you been convicted of or pled guilty or no contest to a felony, or to a misdemeanor charge, other than a minor traffic charge. Small, under indictment, had not as yet been convicted of any offense; therefore, his answer was technically correct but misleading. That is, even though Small answered the Supplemental Questionnaire correctly and even though his answer in the initial application was truthful, his failure to update or amend his answer or supply information about his arrest violated Rule 8.1(b). In re Small, 760 A.2d at 613; see also In re Rosen, 570 A.2d 728 (D.C. 1989) (reckless failure to disclose violates predecessor to Rule 8.1(b), i.e. DR 1-101(A)). Respondent s answers on the initial application were accurate when made, but her failure to update, amend or disclose subsequent disciplinary matters violated Rule 8.1(b). 14
C. Rule 8.4(c) (Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation) Rule 8.4(c) states: It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 8.4(c) may be violated by either intentional or reckless conduct. In re Rosen, 570 A.2d at 729-30. Further, technically true but misleading omissions violate Rule 8.4(c). In re Shorter, 570 A. 2d at 767-68. Proof of fraudulent or deceptive intent is not necessary for a Rule 8.4(c) violation. In re Schneider, 553 A.2d 206, 209 (D.C. 1989). Bar Counsel did not prove by clear and convincing evidence that Respondent s failure to supplement her application, in and of itself, constituted intentional or reckless dishonesty, fraud, deceit or misrepresentation. Respondent knew that she faced at least one North Carolina grievance, and knew or should have known that she faced others. However, the evidence is neither clear nor convincing as to Respondent s intent in failing to supplement. On the one hand, Bar Counsel points to circumstantial evidence that Respondent may (as example) have intentionally avoided picking up certified mail grievance letters from the North Carolina State Bar. On the other hand, Respondent testified that she had difficulty picking up her mail and faced other difficulties in her life at that point, and further points out that she did respond (belatedly) to one of the grievances. The Hearing Panel concludes that Bar Counsel failed to meet its burden of proof to show a violation of Rule 8.4(c) based on Respondent s failure to disclose the North Carolina grievance proceedings prior to the execution of the Supplemental Questionnaire. This evidence suggests negligence but, without more, does not prove recklessness. There is more evidence, however. Bar Counsel showed by clear and convincing evidence that Respondent s knowing, false statement on the Supplemental Questionnaire was an intentional misrepresentation. Respondent knew she was subject to one and probably several grievances in North Carolina. She knew that if she answered yes to any of the questions in the Supplemental Questionnaire, her admission would at least be put on hold pending investigation. Respondent s 15
knowingly false statement to the COA violated Rule 8.1(a) and also violated the more general provisions of Rule 8.4(c). Respondent dishonestly concealed information which she knew would delay or possibly even cause the COA to deny her application. Respondent was admitted to the Bar under false pretenses. See In re Powell, 898 A.2d 365 (D.C. 2006) (attorney violated Rules 8.1(a), 8.4(c), and 8.4(d) by failing to disclose he was a member of the District of Columbia Bar and had been suspended on account of a criminal conviction). Respondent s misconduct was not the result of inadvertence but of avoidance. She intentionally avoided her obligations to the North Carolina Fee Dispute Resolution system and she intentionally avoided her obligation to answer the COA s Supplemental Questionnaire honestly. Dishonesty by material omission (or avoidance) is as serious and as dishonest as affirmative misrepresentations. In re Scanio, 919 A.2d 1137, 1143 (D.C. 2007); In re Soininen, 853 A.2d 712, 732 (D.C. 2004). Further, as the Court has repeatedly explained: Rule 8(4)(c) is not to be accorded a hyper-technical or unduly restrictive construction. In In re Hager, 812 A.2d 904 (D.C. 2002), we stated: We have given a broad interpretation to Rule 8.4(c), as recapitulated recently in In re Arneja, 790 A.2d 552, 557 (D.C. 2002). [Dishonesty] encompasses conduct evincing a lack of honesty, probity, or integrity in principle; [a] lack of fairness and straightforwardness. In re Shorter, 570 A.2d 760, 767-68 (D.C. 1990) (per curiam) (citation omitted); Accord, Slattery, supra, 767 A.2d at 213. See In re Carlson, 745 A.2d 257, 258 (D.C. 2000) (per curiam) (dishonesty may consist of failure to provide information where there is duty to do so); In re Jones-Terell, 712 A.2d 496, 499-500 (D.C. 1998) (violation found despite lack of evil or corrupt intent ); In re Reback, 487 A.2d 235, 239 (D.C. 1985) (per curiam), vacated but adopted and incorporated in relevant part, 513 A.2d 226 (D.C. 1986) (en banc) (dishonesty in filing second complaint to replace one dismissed because of negligent inattention.). Dishonesty is also the most general term in Rule 8(4)(c), encompassing fraudulent, deceitful, or misrepresentative behavior, In re Wilkins, 649 A.2d 557, 561 (D.C. 1994) (per curiam), but also applying to conduct not covered by the latter three terms, which describe degrees or kinds of active deception or positive falsehood. Shorter, supra, 570 A.2d at 768. Indeed, it has been suggested that sufficiently reckless conduct is enough to sustain a violation of the rule. Jones-Terrell, supra 712 A.2d at 499. 16
Id. at 916; see also In re Cleaver-Bascombe, 892 A.2d 396, 404 (D.C. 2006) ( an Attorney who recklessly maintains inadequate time records, and consciously disregards the risk that she may overcharge a client (or here, the CJA fund), also engages in dishonesty within the meaning of Rule 8.4(c). ) Thus, even if Respondent s conduct was in reckless disregard of the truth rather than specifically intended to deceive... he would have violated Rule 8.4(c). In re Ukwu, 926 A.2d 1106, 1113-14 (D.C. 2007). Respondent asks the Hearing Committee to find that she explained her mistake and the inconsistency in her Bar application in a letter dated August 6, 2007. Respondent s August 6, 2007 letter, attached to BX D (third page), was written to Bar Counsel, not the COA, and it was an attempt to convince Bar Counsel that her actions regarding her Bar admission were entirely proper. Respondent wrote Bar Counsel that at the time she submitted her Supplemental Questionnaire, there were not, to my knowledge, any charges or complaints pending against me concerning my conduct as an attorney. At the time, I was involved in three separate fee disputes. BX D, third page. This was not accurate, and Respondent knew it. It is beyond serious dispute that when Respondent executed her Supplemental Questionnaire on March 4, 2006 she knew the Goodman matter was a grievance. The clearest proof of how Respondent perceived the Goodman matter is her November 23, 2005 letter to the Grievance Committee, where she uses the term grievance multiple times. BX 13. Moreover, Respondent knew or should have known there were additional North Carolina grievances pending when she executed the Supplemental Questionnaire. IV PROPOSED SANCTION In determining the appropriate sanction, the foremost concern is the need to protect the public, the courts, and the legal profession. In re Steele, 630 A.2d 196 (D.C. 1993) (quoting In re Hutchinson, 534 A. 2d 919, 924 (D.C. 1987) (en banc)). In order to arrive at an appropriate sanction that is consistent with other cases and not unwarranted, the Court examines several factors, 17
including (1) the seriousness of the misconduct, (2) prejudice to the client, (3) violations of companion provisions of the Rules of Professional Conduct, (4) whether the conduct involves dishonesty, (5) prior discipline, (6) the attorney s attitude toward the underlying matter, and (7) any circumstances in mitigation. D.C. Bar R. XI, 9(g)(1); In re Slaughter, 929 A.2d 433, 446 (D.C. 2007); In re Slattery, 767 A.2d 203 (D.C. 2001). The Hearing Committee recommends that Respondent be suspended for nine months and that she be required to prove fitness to practice law before she is reinstated. A. Seriousness of the Misconduct Respondent s misconduct was serious in that it involved dishonesty in connection with her Bar license. If Respondent is not able or willing to be completely forthright, candid, and honest in seeking admission to the Bar in this jurisdiction, it does not augur well for her legal career and calls into question her integrity and character. See In re Starnes, 829 A.2d 488, 500 (D.C. 2003) ( Respondent s misstatement tainted the admissions process by depriving the Committee on Admissions of the opportunity to conduct a proper character and fitness inquiry. ). Here, as in Starnes, Respondent s failure to disclose was prejudicial to the judicial process. B. Prejudice to the Client Respondent s misconduct did not involve clients; therefore, there was no direct prejudice to clients. However, there certainly was prejudice to the system by which the Court determines to admit only members of the Bar who will serve the courts and the public in this jurisdiction with integrity. Respondent s violations subverted the admissions process and deprived the Court of a thorough review of her application. C. Violations of Companion Provisions of the Rules Respondent violated several provisions of the Rules of Professional Conduct, including Rules 8.1(a), 8.1(b), ad 8.4(c), by the same misconduct. 18
D. Conduct Involving Dishonesty. Respondent is charged with engaging in conduct involving dishonesty. Dishonesty by lawyers cuts away at the heart of the legal profession. In re Lopes, 770 A.2d 561, 568 (D.C. 2001). As the Court has stated: the principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general. In re Slattery, 767 A.2d at 216 (quoting In re Addams, 579 A.2d 190, 194 (D.C. 1990) (en banc)). The discipline we impose should serve not only to maintain the integrity of the profession and to protect the public and the courts, but also to deter other attorneys from engaging in similar misconduct. In re Reback, 513 A.2d at 231 (citing In re Wild, 361 A.2d 182, 183 (D.C. 1976). In re Scanio, 919 A.2d 1137, 1144 (D.C. 2007). If applicants to the Bar knew that by omitting information during the application process, they could get admitted and suffer, if caught, only a reprimand or short suspension, they would not be deterred from providing such incomplete or outright dishonest responses to the COA s questions. Dishonesty by an attorney is always serious. Honesty is basic to the practice of law. In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc). A lawyer s word to a colleague at the bar must be the lawyer s bond. A lawyer s representation to the court must be as reliable as a statement under oath. The reliability of a lawyer s pleadings in guaranteed by the lawyer s membership in the bar. Id. 513 A.2d at 231. E. Prior Discipline Respondent has a record of prior discipline in North Carolina. In 2003, Respondent was issued a Reprimand for violating rules 8.1(b) (failure to respond promptly to grievances filed against her) and 1.5(f) (failure to respond to the fee dispute matters). BX 15 (page 2). The Reprimand states that Respondent failed to respond to the petition for fee dispute resolution filed by two separate clients and then failed to respond to the grievances filed against her by the North Carolina Bar. The Reprimand also recites the North Carolina Bar s attempts to serve Respondent by certified mail and Respondent s failure to claim the mail. 19
On February 18, 2008, the North Carolina Bar suspended Respondent for three years, and provided that Respondent could move to set aside the suspension after serving one year of active suspension, if she complies with conditions outlined in the Order of Discipline. BX 16. The discipline stems from fee disputes filed by four clients that resulted in violations of North Carolina Rules 1.3 (failure to perform legal services promptly and with diligence); 1.4(a) (4) (failure to communicate); 1.4(a)(3) (failure to keep clients informed); 1.16(d) (failure to return unearned fees); 1.5(f) (failure to participate in good faith in the fee dispute resolution process); and 8.1(b) (failure to respond to lawful inquiries from a disciplinary authority). Thus, Respondent s misconduct involved substantive failures to provide competent representation, failure to communicate, and failure to respond to the Fee Dispute and Bar authorities. This matter is pending in the District of Columbia as a reciprocal matter. See In re Scott, Bar Docket No. 2008-D089. In view of Respondent s past tendencies to ignore and obstruct the North Carolina authorities, her similar conduct here is a repetition showing Respondent s disrespectful attitude toward the self-policing function of the Bar. F. Respondent s Acknowledgment of Wrongful Conduct Respondent acknowledged no wrongful conduct during the investigation of this matter or during the evidentiary or mitigating phase of the disciplinary hearing. Cf. In re Hager, 812 A.2d 904, 922 (D.C. 2002) (failure to indicate remorse or acknowledge misconduct considered an aggravating circumstance). Instead, she gave a misleading response to Bar Counsel during the investigation and offered the Hearing Committee excuses and rationalizations. The Hearing Committee was left with the impression that Respondent does not take her responsibility to be forthright with Bar Counsel or the COA seriously. 20
G. Circumstances in Mitigation Respondent presented her own uncorroborated testimony as evidence in mitigation. She stated, without much elaboration or detail, that during the relevant period she was sick, her parents were facing a foreclosure, she had a miscarriage, and she had much more pressing issues going on in her life. Tr. 65-66. Respondent s evidence in mitigation may explain why she was not punctual in responding to correspondence from the North Carolina State Bar, but it neither explains nor excuses her misrepresentations to the COA, which are the basis for the present proceeding. In mitigation of sanctions, Respondent also asked the Hearing Committee to take into consideration that she has since resolved two of the fee disputes. Tr. 100. Respondent further testified, I think that I could have resolved them [the four grievance matters] very favorably and for less money than was requested, and they would have never risen to the level of grievances. Tr. 102. This is beside the point. Respondent could and should have handled the North Carolina issues better; but she didn t. Moreover, Respondent s North Carolina discipline involved more than just a failure to respond to fee disputes. North Carolina found, and Respondent stipulated, that Respondent [b]y failing to perform the legal services that Goodman, White, Smith and Porter hired her to perform,..... failed to act with reasonable diligence and promptness in representing her clients in violation of Rule 1.3. BX 16 (page 6). Respondent s testimony seeking to minimize the North Carolina disciplinary issues does not mitigate the seriousness of her misconduct in connection with her D.C. Bar application. To the contrary; the North Carolina discipline is an aggravating factor. H. Consistent Cases On Sanction For sanction purposes, the Hearing Committee compared this case to other cases involving attorneys who have violated ethical rules involving dishonesty having to do with the Bar application 21
process. In such cases, the sanction has ranged from a six-month suspension with a fitness requirement to disbarment. 1. Suspension. The respondent in In re Starnes falsely represented to the COA that his pre-admission legal work had all been supervised by a licensed attorney, when in fact he had accepted retainers and purported to represent several clients under his own name. 829 A.2d at 490-91. In addition, after admission, respondent Starnes seriously neglected three separate client matters. Id. Partly in light of Respondent s repentant attitude the Court accepted the recommendation of the BPR and imposed a six-month suspension with fitness requirement. Id. at 501. In In re Rosen, respondent Rosen, a member of the Bar, applied for admission in Maryland. 570 A.2d at 728-30. His original Maryland application accurately stated that at the time of application no charges or complaints were pending against him concerning his professional conduct. Later on, on the eve of his swearing-in in Maryland, Rosen endorsed a written oath averring that there were still no pending charges or complaints. By that time, however, Rosen had become the target of two District of Columbia disciplinary complaints, one of which was being prosecuted by Bar Counsel. Partly in view of the fact that respondent Rosen had already been exposed to disciplinary sanctions in Maryland, the Court imposed a nine-month suspension with the requirement that Rosen furnish satisfactory proof of his rehabilitation before being reinstated. Id. at 730. 4 The respondent in In re Powell was convicted of a misdemeanor in Virginia, reprimanded by the Virginia bar, suspended by the District of Columbia Bar and then applied for admission to the bar of the U.S. District Court for the District of Colorado without disclosing either that he was a 4 In re Rosen imposed discipline under former DR 1-101(A), the predecessor of Rule 8.1(b). 22
member of the District of Columbia Bar or that he had been suspended. 898 A.2d at 365-66. The Court imposed a one-year suspension with fitness requirement. In In re Small, respondent received a three-year suspension with fitness requirement; but the primary issue in that case was respondent Small s conviction for vehicular negligent homicide, while driving under the influence with a suspended driver s license. 760 A.2d at 612-14. This was found to violate Rule 8.4(b)(commission of a criminal act reflecting adversely on lawyer s honesty, trustworthiness or fitness to practice law). An additional factor was respondent Small s failure to inform the COA of his arrest for the collision, which had occurred shortly before Small s admission to the Bar, in violation of Rule 8.1(b). There was no charge that Small had made any express misrepresentation on his bar application. The respondent in In re Regent was disbarred after having made repeated false statements in applications for admission to practice law in Arizona and Nevada, and after having been disbarred in Hawaii. 741 A.2d at 40-43. Respondent s misconduct in this case most closely resembles that in Rosen. Like Rosen, Respondent was an experienced attorney seeking to waive in to a new jurisdiction. Like Rosen, Respondent s original application was substantially accurate, but she became the target of out-ofstate disciplinary proceedings before she was sworn in. Like Rosen, Respondent not only failed to report the disciplinary proceedings but also executed a supplemental questionnaire in which she falsely denied that there were any pending disciplinary proceedings against her. This case also has some features in common with the Starnes case. Like Starnes, Respondent made false statements on supplemental materials submitted to the COA in support of her admission to the Bar, and also like Starnes there is evidence that Respondent neglected some client matters (as she has admitted in the North Carolina disciplinary proceedings). However, Respondent has not 23
displayed the same repentant attitude found in the Starnes case, and unlike the respondent in Starnes she was an experienced member of the bar when she incurred discipline. This case has less in common with Powell and Small, each of which involved criminal convictions, or with Regent, which involved reciprocal disbarment in Hawaii as well as multiple false statements made in support of multiple applications in multiple jurisdictions. On balance, the Hearing Committee recommends that Respondent be suspended for a period of nine months. This strikes a balance between the seriousness of Respondent s misconduct and the fact that she was not involved in more egregious criminal or recidivist behavior such as that in Powell, Small or Regent. 2. Fitness Requirement. The standard for imposing a fitness requirement is clear and convincing evidence that casts doubt upon the attorney s continuing fitness to practice law. In re Cater, 887 A.2d 1, 6 (D.C. 2005). In Starnes, the Court said, We note, in particular, the importance of the requirement that Starnes demonstrate fitness to practice law in view of the concerns that his unremedied violations raise regarding his honesty, competence, trustworthiness and professional responsibility. In re Starnes, 829 A.2d at 490 (footnote and citations omitted) (citing In re Small, 760 A.2d at 614). It is clear that the Court considers dishonesty in the context of a Bar application as extremely serious conduct. Here, Respondent s dishonesty was intentional. She knew there was at least one grievance pending against her in North Carolina and still she gave a false answer on the Supplemental Questionnaire. Respondent knew, as any attorney would, that pending grievances would be of interest to the COA, which conducts the admissions process on behalf of the Court. See generally D.C. App. R. 46. As an experienced attorney, Respondent should have been sensitive to the need to interpret broadly disclosure requirements in Bar admissions matters. Any attorney or Bar applicant knows that questions about disclosure should be resolved in favor of disclosure, or at least trigger an 24
inquiry to the COA, neither of which happened here. The Court and its COA depend upon the honesty and forthrightness of attorneys when they make admissions decisions. Respondent s dishonesty tainted the admissions process. Also troubling is Respondent s pattern of ignoring fee disputes, neglecting North Carolina clients after Respondent moved to the District of Columbia, failure to pick up multiple certified mail notices over a period of several weeks, misrepresentation to Bar Counsel about the nature of the North Carolina disciplinary proceeding, consent to serious discipline in North Carolina encompassing failures to provide adequate representation to the clients she left behind when she moved to the District, and continuing proclivity to minimize her own responsibility for these serial ethical breaches. The evidence is clear and convincing that Respondent has been less than candid with bar officials in North Carolina as well as the District of Columbia and has more than once neglected North Carolina clients work. Respondent was not new to the concept of cooperation with a disciplinary system and the consequences of failure to do so. See BX 15, 16. Respondent had prior discipline when she violated the instant rules and she was an experienced attorney. She had notice of the need to update the COA; and she had notice of the pending grievance. She responded to the grievance, but still she failed to disclose the grievance to the COA before she was sworn into the Bar. Respondent s past behavior and present dismissive attitude cast sufficient doubt on her continuing fitness to practice law to justify the imposition of a fitness requirement. The hearing panel accordingly recommends that any reinstatement following Respondent s nine month suspension be subject to a fitness requirement. 25