DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: Respondent. LATHAL PONDER, JR., A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 434951) : : : : : : : : : Board Docket No. 12-BD-069 Bar Docket Nos. 2012-D061 2012-D147 2012-D177 2012-D206 2012-D233 REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes before the Board on Professional Responsibility (the Board ) after an Ad Hoc Hearing Committee (the Committee ) concluded that Respondent Lathal Ponder, Jr., committed multiple violations of the District of Columbia Rules of Professional Conduct ( the Rules ) and D.C. Bar R. XI, 2(b)(3). Following a hearing in which Respondent failed to participate, the Committee recommended that Respondent be disbarred for his inadequate representation of several clients, his flagrant dishonesty, and his misconduct during Bar Counsel s investigations. The Committee concluded that Respondent violated the Rules as charged by Bar Counsel, with one exception: the Committee found that Respondent engaged in only two violations of Rule 8.4(b) (criminal conduct) rather than the multiple violations of Rule 8.4(b) charged by Bar Counsel. Bar Counsel objected to this conclusion. After reviewing the record, the Board concurs with the Committee s factual findings and its recommended sanction. Further, the Board agrees with the Committee s Conclusions of Law, with a few exceptions as set forth in this report. The Board recommends that Respondent be disbarred.
I. PROCEDURAL HISTORY Respondent is a suspended member of the Bar of the District of Columbia Court of Appeals; he was admitted on November 13, 1992 and assigned Bar Number 434951. On October 16, 2012, the Court of Appeals temporarily suspended Respondent pursuant to D.C. Bar R. XI, 11(d) based on an order of suspension from the United States District Court for the District of Columbia. On October 17, 2012, Bar Counsel filed Specifications of Charges against Respondent in five separate cases. The cases were consolidated for all purposes on October 22, 2012. Collectively, the Specifications of Charges alleged that Respondent committed one or more violations of the following Rules: Rules 1.1(a) and (b) (lacking competence, skill, and care); Rules 1.3(a) and (b)(1)-(2) (failing to provide diligent and zealous representation, intentionally failing to seek client s lawful objectives, intentionally prejudicing or damaging client); Rules 1.4(a) and (b) (failing to keep client reasonably informed and to explain matters reasonably necessary to permit the client to make informed decisions); Rules 1.5(b) and (c) (failing to provide a written basis of fees and failing to provide the method of calculating a contingent fee); Rule 1.16(d) (failing to surrender papers and property to which the client is entitled); Rules 8.1(a) and (b) (making false statements in a disciplinary matter and knowingly failing to respond to lawful demands for information from Bar Counsel); Rule 8.4(b) (committing a criminal act that reflects adversely on honesty, trustworthiness, or fitness as a lawyer including fraud and forgery in violation of D.C. Code 22-3221 and 22-3241, respectively); Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); - 2 -
Rule 8.4(d) (engaging in conduct that seriously interferes with the administration of justice); and D.C. Bar R. XI, 2(b)(3) (failing to comply with orders of the Board and Court). Bar Counsel personally served Respondent with these charges on December 7, 2012. Respondent did not file answers to any of the charges. On January 17, 2013, the Chair of the Committee conducted a pre-hearing conference that Respondent did not attend. A copy of the Committee Chair s pre-hearing order that set the date for the hearing was sent to Respondent on January 30, 2013. The order also extended the deadline for Respondent to file a motion for leave to late-file his answer to the Specifications of Charges. On April 17 and May 22, 2013, the Committee conducted hearings during which Bar Counsel submitted numerous exhibits and called nine witnesses. Respondent did not attend the hearings. Following the hearings, the Chair issued an order directing the parties to file post-hearing briefs. Bar Counsel s brief was timely filed on June 21, 2013. Respondent did not file a post-hearing brief. On October 23, 2013, in a fifty-five page Report and Recommendation ( Committee Report ), the Committee unanimously concluded that Bar Counsel proved by clear and convincing evidence that Respondent committed most of the alleged violations. 1 With regard to Rule 8.4(b), the Committee found that Bar Counsel did not establish by clear and convincing evidence that Respondent possessed the requisite intent to commit the charged crimes of fraud or forgery with respect to the vast majority of the 1 The Committee Report is cited as HC Rpt. at. The Committee s Findings of Fact are cited by paragraph number as FF. Bar Counsel s Exhibits are cited as BX. The hearing transcripts are cited as Tr.. - 3 -
falsified documents he provided to his clients. The Committee concluded, however, that the evidence was sufficient to find fraudulent intent with respect to a fabricated probate order Respondent gave one client, Ms. Lynette Thomas, and for the fabricated complaint Respondent filed on behalf of another client, Mr. John Tucker. Therefore, the Committee found that Respondent committed crimes that reflected adversely on his honesty, trustworthiness, and fitness to practice law, and thus committed two violations of Rule 8.4(b) with respect to those documents. Bar Counsel objected to the Committee s conclusion that Respondent engaged in only two violations of Rule 8.4(b) and not the multiple violations of Rule 8.4(b) charged by Bar Counsel. Respondent did not take exception to the Committee Report. II. FINDINGS OF FACT The Committee Report contains eighty-three paragraphs of comprehensive and detailed factual findings. The Board is obligated to accept those findings as long as they are supported by substantial evidence on the record as a whole[.] Board Rule 13.7; see In re Cleaver-Bascombe, 892 A.2d 396, 401 (D.C. 2006). After reviewing the record, the Board concludes that the Committee s Findings of Fact are fully supported by substantial evidence on the record. Accordingly, we adopt the Findings of Fact presented in the Committee Report and set forth here only a summary to provide context for the Conclusions of Law that follow. A. Respondent s Representation of Ms. Baxter, Ms. Thomas, Ms. Young, Mr. Tucker, and Mr. Miller. Despite the differences in the underlying claims, Respondent engaged in a similar pattern of misconduct in connection with his representation of all clients involved in this matter. He failed to represent his clients interests, lied to them about the status of their - 4 -
respective cases, falsely reported the supposed outcomes of court proceedings and settlement negotiations, fabricated court documents and settlement agreements, and continually led his clients to believe that settlement payments were forthcoming when, in fact, no settlements were ever reached. 1. Ms. Carolyn Baxter The first instances of Respondent s misconduct surround his representation of Ms. Carolyn Baxter, who retained him in a personal injury claim and a housing dispute. FF 2. In 1998, Respondent agreed to represent Ms. Baxter in the personal injury case for a onethird contingency fee. FF 4. Ms. Baxter requested a copy of the contingency fee agreement she signed, but Respondent provided neither the agreement nor any other writing setting forth the basis for his fee. Id. Respondent later told Ms. Baxter that he had filed suit in support of her personal injury claim and provided her with a copy of the complaint he allegedly filed. FF 5. In reality, Respondent fabricated the complaint and had never actually filed a suit. FF 5, 7. Respondent continually provided Ms. Baxter false oral reports and information on developments in the non-existent case. FF 7. In September 2011, Respondent told Ms. Baxter that he had settled her personal injury case for $385,000. FF 8. Respondent gave Ms. Baxter a false settlement agreement that appeared to be signed by the defendant, and Ms. Baxter signed it as well. Id. In truth, no settlement had been reached. FF 9. Over the next few months, Respondent repeatedly lied to Ms. Baxter concerning why the settlement money had not yet arrived, and failed to respond to a number of Ms. Baxter s inquiries about the funds. Id. Eventually, Respondent told Ms. Baxter that she would receive an additional $25,000 from the defendant as a sanction and that another attorney, Jesse James, Jr., would try to - 5 -
collect funds owed her under the settlement agreement. Id. Ms. Baxter, however, never received any payments from the supposed settlement of the personal injury matter. Id. Commencing in or around 2002, Respondent also represented Ms. Baxter in a housing matter brought against her, and told her that he would take his fee from the settlement in the personal injury case. FF 10-12. Again, Respondent did not provide a representation letter to Ms. Baxter nor did he provide any written basis for his fee. FF 12. Respondent filed an answer and a motion to vacate a $10,000 judgment for back rent that had been entered against Ms. Baxter. The court denied the motion to vacate. FF 11, 13. Following the denial, Respondent filed a notice of appeal. FF 14. Respondent failed, however, to file the documents necessary to open the case, to pay the $50 docketing fee, and to comply with the Court of Appeal s order directing these materials to be filed. Id. The Court thus dismissed the appeal. Id. Rather than tell Ms. Baxter about these developments, Respondent falsely told her that he had gone to court, that the $10,000 judgment was overturned, and that she did not have to pay the judgment. FF 15. Respondent also filed a civil action against Ms. Baxter s landlord on Ms. Baxter s behalf; however, Respondent failed to serve the landlord, and the case was dismissed without prejudice. FF 16. Respondent did not inform Ms. Baxter of the dismissal, continued to claim that he was pursuing the case, provided falsified documents to Ms. Baxter, and eventually told her that the court had awarded her $18,300. FF 17. Respondent continually provided excuses as to why the money promised to Ms. Baxter had not arrived and eventually falsely told her that the court awarded her an additional $5,000 as a sanction. FF 18. - 6 -
Eventually, Ms. Baxter submitted a written request to Respondent for her complete case file. FF 20. Respondent failed to provide the case file to Ms. Baxter. Id. 2. Ms. Yvette Thomas Respondent represented Ms. Yvette Thomas beginning in 2009 in a wrongful death action connected to her husband s suicide. That representation was similarly problematic. Respondent did not communicate to Ms. Thomas in writing the basis or rate of the fee he would charge. FF 27. Respondent falsely told Ms. Thomas that he had contacted the Washington Metropolitan Area Transit Authority (WMATA) to obtain her husband s suicide note and that WMATA refused to comply, when in fact no contact had been made. FF 29. Respondent subsequently filed a lawsuit against WMATA, without informing Ms. Thomas that he had done so. FF 30. WMATA moved to dismiss the claim due to the expiration of the statute of limitations, and Respondent never responded to the motion nor sought an extension of time to respond. FF 31. Accordingly, the court dismissed the case. Id. Respondent, however, did not inform Ms. Thomas of the dismissal. FF 31-32. Rather, Respondent provided Ms. Thomas with false updates about the case and eventually sent her a fabricated settlement agreement pursuant to which Ms. Thomas was to receive from WMATA $350,000 plus $36,000 in attorney s fees. FF 32-33. Following the execution of the alleged settlement agreement, Respondent provided Ms. Thomas with numerous excuses as to why the settlement check had not arrived and even purported to reschedule a hearing in the non-existent case. FF 34. In addition, Respondent advised Ms. Thomas to open a probate case for the estate of her deceased husband to protect her against others who might want a part of the money he said she would receive from WMATA, and claimed that he had filed the appropriate paperwork to - 7 -
probate the estate. FF 35. Respondent again provided Ms. Thomas with false updates and fabricated documents when, in fact, he had never filed a probate action on Ms. Thomas behalf. FF 35-36. 3. Ms. Sharon Young In the third case, Respondent purported to represent Ms. Sharon Young beginning in 2003 for a contingency fee of one-third of her recovery in a wrongful termination action against the District of Columbia Public Schools (DCPS), but did not provide Ms. Young with a writing stating the basis or rate of his fee or an explanation of the scope of his representation. FF 43-44. Respondent never entered an appearance before the administrative judge assigned to Ms. Young s appeal, never submitted a brief, and did not attend the prehearing conference. FF 45. The case was eventually dismissed. FF 46. Respondent told Ms. Young that he would appeal the dismissal, but failed to do so. FF 47. Respondent again provided his client with false updates on her case when, in reality, the case no longer existed. Id. Beginning in 2009, Respondent also represented Ms. Young in an employment matter against the University of the District of Columbia. FF 50. Respondent once again agreed to a one-third contingency fee but failed to provide a writing stating the basis or rate of the fee or the scope of his representation. Id. Over the course of two years, Respondent falsely represented his efforts to pursue the matter when, in truth, he had never filed any action against the university. FF 51. These false representations included a phony settlement agreement stating that the university would pay Ms. Young $165,000 by late November 2011, fake telephone conversations, lies about the status of the supposed settlement payments, and phony checks. See FF 52-54. Meanwhile, Ms. - 8 -
Young had outstanding creditor bills and other financial difficulties, which she expected would be cured by the fictional windfall Respondent had promised. FF 55. 4. John and Tammy Tucker Fourth, Respondent represented Mr. John Tucker in a personal injury matter involving an automobile accident in 2001, and in a subsequent wrongful termination action and claim against Mr. Tucker s insurer arising from a work-related accident in 2009. FF 60, 66. Respondent said he would charge a one-third contingency fee for the representation in the personal injury matter, but did not provide any agreement or writing setting out the basis or rate of his fee or scope of the representation. FF 60. In 2002, Respondent told the Tuckers that he had filed a lawsuit in the personal injury matter when, in fact, he failed to do so until December 2004 after the two-year statute of limitations had run. FF 61. Furthermore, Respondent filed the complaint in Virginia where he is not licensed to practice law and forged the signature of Virginia attorney Jesse James, Jr., on the complaint. Id. The court eventually dismissed the case, but Respondent did not tell the Tuckers about the dismissal. FF 62-63. Instead, Respondent falsely told the Tuckers that he was pursuing the action and sent the Tuckers a settlement agreement, disbursed approximately $1,950 to Mr. Tucker allegedly from one of the individuals involved in the accident, provided fabricated court documents to the Tuckers and wired $8,000 to the Tuckers bank account, purportedly representing Mr. Tucker s remaining share of the settlement. FF 63-65. The source of these funds is not clear on this record, but there is no evidence that they were the result of an actual settlement. HC Rpt. at 25 n.10. - 9 -
Respondent never told the Tuckers what he would charge for the representation of Mr. Tucker in the separate wrongful termination action or the claim against his insurer. FF 66. In addition, Respondent did not provide a retainer agreement or other writing setting forth the basis or rate for his fees and scope of representation in those two matters. FF 66. Respondent represented that he had filed actions when he had not, gave the Tuckers falsified pleadings and court documents, and lied about settlement negotiations (including that Mr. Tucker would receive $225,000 in the insurance case). FF 67-70. Respondent asked Mr. Tucker to sign a fabricated settlement agreement and, once again, made excuses as to why the settlement checks were not forthcoming. FF 68, 72. Respondent even provided copies to the Tuckers of false checks totaling over $650,000. FF 69, 72. Respondent continued to deceive Mrs. Tucker after the death of Mr. Tucker in March 2012. In May 2012, Mrs. Tucker contacted the federal courts where Respondent said he had filed actions and learned that the courts had no record of those cases. FF 73-74. 5. Mr. Charles Miller Fifth, in 2002 or 2005, Respondent represented Mr. Charles Miller in several claims against Mr. Miller s former employer. FF 78. 1 Respondent told Mr. Miller he would charge him a one-third contingency fee, but did not provide any retainer agreement or writing setting out the basis or rate of his fee or the scope of his representation. Id. Respondent s representation of Mr. Miller is not significantly different from his representation of the previous four clients: Respondent falsely claimed that he had filed a 1 Mr. Miller testified that he was uncertain of the actual date the representation began, Tr. 133:9-17, but that uncertainty does not impact the Board s analysis. - 10 -
lawsuit on Mr. Miller s behalf, fabricated court documents, gave false updates regarding the fictitious case, claimed to have reached a fictional $485,000 settlement, and lied about non-existent sanctions against Mr. Miller s former employer. FF 79. As in the other cases, Mr. Miller eventually learned about Respondent s deception, but only after approaching the court himself with Respondent s fake documents. FF 80. B. Respondent s Actions During Bar Counsel s Investigations. Respondent also engaged in misconduct related to these disciplinary proceedings. Respondent lied to Bar Counsel in regard to two of the matters those of Ms. Baxter and Ms. Thomas and failed to respond to Bar Counsel s inquiries and subpoenas in all five matters. FF 23-25, 40-42, 57, 59, 77, 83. Respondent did not participate in the disciplinary proceedings, did not file a post-hearing brief, and did not respond to orders of the D.C. Court of Appeals and the Board directing Respondent to respond to the allegations against him. HC Rpt. at 2, 3-4; FF 42, 59, 77, 83. III. CONCLUSIONS OF LAW The Committee found that Respondent violated Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b), 1.4(a), 1.4(b), 1.5(b), 1.5(c), 1.16(d), 8.1(a), 8.1(b), 8.4(b), 8.4(c), and 8.4(d), as well as D.C. Bar R. XI, 2(b)(3). The Committee concluded, however, that Respondent only violated Rule 8.4(b) in two of the alleged counts. For the reasons that follow, the Board agrees with the Committee s Conclusions of Law as to each alleged violation except two. First, the Board finds that Respondent committed a violation of Rule 1.5(b) in each of the matters for which he represented Mr. Tucker rather than solely in the first matter. Second, the Board finds that Respondent committed numerous violations of Rule 8.4(b), rather than just the two violations found by the Committee. - 11 -
A. Respondent Provided Incompetent Representation in Violation of Rules 1.1(a)-(b) (Baxter, Thomas, Young, Tucker, Miller). Rule 1.1(a) requires lawyers to provide competent representation to their clients. Rule 1.1(b) states that a lawyer must serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters. Competent representation includes the thoroughness and preparation that are reasonably necessary for the representation. Rule 1.1(a). Accordingly, competent handling of a matter requires use of methods and procedures meeting the standards of competent practitioners. Rule 1.1 cmt. [5]. Complying with the technical requirements of a lawsuit such as filing within the statute of limitations and effecting proper service are considered standard for competent practitioners. See In re Outlaw, 917 A.2d 684, 687 (D.C. 2007) (per curiam) (concluding that the lawyer did not serve her client with the necessary skill and care when she failed to take action before the expiration of the statute of limitations). Here, Respondent failed to act with competence and to serve each of the five clients involved in this matter with the requisite skill and care. See Rule 1.1 cmt. [5]. (a lawyer violates the rules when he fails to pay continuing attention to the needs of the representation[.] ). He did nothing to further the claims of Ms. Baxter in her personal injury case, Ms. Thomas in the probate matter, Ms. Young in the action against the university, Mr. Tucker in his personal injury, wrongful termination, and insurance claims, or Mr. Miller against his employer. In the matters where Respondent did take limited action to assist his clients, he either filed beyond the statute of limitations (Ms. Thomas wrongful death action), failed to take the necessary follow-up actions (as in his representation of Ms. Baxter and Ms. Young), or both (in Respondent s representations - 12 -
of Mr. Tucker). The Board agrees with the Committee s Conclusions of Law that Respondent violated Rules 1.1(a)-(b) during his representation of Ms. Baxter, Ms. Thomas, Ms. Young, Mr. Tucker, and Mr. Miller. B. Respondent Failed to Provide Zealous and Diligent Representation in Violation of Rule 1.3(a) (Baxter, Thomas, Young, Tucker, Miller). Rule 1.3(a) requires lawyers to represent their clients zealously and diligently within the bounds of the law. Zeal and diligence require communicating with the client and taking the necessary steps in the client s matter. In re Lyles, 680 A.2d 408, 415-16 (D.C. 1996) (per curiam) (appended Board Report) (concluding that failure to take action on behalf of clients constitutes a violation of Rule 1.3(a)). Neglecting a client matter is a serious violation of the obligation of diligence. Rule 1.3(a) cmt. [8]. Neglect has been defined as indifference and a consistent failure to carry out the obligations that the lawyer has assumed to the client or a conscious disregard of the responsibilities owed to the client. In re Wright, 702 A.2d 1251, 1255 (D.C. 1997) (per curiam) (appended Board Report) (citing In re Reback, 487 A.2d 235, 238 (D.C. 1985), adopted in relevant part, 513 A.2d 226 (D.C. 1986) (en banc) ( Reback II ). Here, Respondent engaged in a pattern of neglect sufficient to sustain a finding of a violation of Rule 1.3(a). Respondent consistently failed to take actions necessary to vindicate [his] client s cause or endeavor. See Rule 1.3(a) cmt. [1]. In all five representations, Respondent failed to truthfully communicate with his clients and to carry out the obligations he assumed be it by neglecting to file within the statute of limitations (or at all), failing to serve the defendant, or simply not taking actions to protect his clients interests. We agree with the Committee that Respondent displayed a - 13 -
pattern of conscious disregard for his responsibilities to his clients and violated Rule 1.3(a). HC Rpt. at 33. C. Respondent Intentionally Failed to Pursue The Lawful Objectives of His Clients and Prejudiced and Damaged His Clients in Violation of Rules 1.3(b)(1)-(2) (Baxter, Thomas, Young, Tucker, Miller). Rule 1.3(b) states that [a] lawyer shall not intentionally: (1) [f]ail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules; or (2) [p]rejudice or damage a client during the course of the professional relationship. Intentional neglect constitutes a serious violation of Rule 1.3(b) s requirement of diligence. Rule 1.3 cmt. [8]. [W]hile the hallmark of a Rule 1.3(b) violation is that the neglect was intentional, the Rule does not require proof of intent in the usual sense of the word. Rather, neglect ripens into an intentional violation when the lawyer is aware of his neglect of the client matter... or, put differently, when a lawyer s inaction coexists with an awareness of his obligations to his client. In re Ukwu, 926 A.2d 1106, 1116 (D.C. 2007) (internal quotations and citations omitted). Intent may be inferred if the neglect is so pervasive that the lawyer must have been aware of it. Id. (citation omitted). In discerning whether neglect is intentional, the Court will consider the entire mosaic of the lawyer s actions rather than each case individually. See id. (rejecting the position that in determining Respondent s intent visà-vis a particular client, only the record as to that client is to be taken into account ). Our consideration of the entire mosaic of Respondent s representations supports the Committee s determination that Respondent intentionally neglected each of the matters at issue. See Ukwu, 926 A.2d at 1117-18 (looking at the entire mosaic of five clients to determine whether neglect was intentional). Respondent failed to provide truthful and meaningful representation to his clients. See In re Lewis, 689 A.2d 561, 564-14 -
(D.C. 1997) (per curiam) (appended Board Report) ( Knowing abandonment of a client is the classic case of a Rule 1.3(b)(1) violation.... ). Respondent s perpetual lies regarding the status of his clients cases also establishes that he was demonstrably aware of his neglect and that the neglect was thus intentional. See In re Dory, 528 A.2d 1247 (D.C. 1987) (per curiam); In re Schoeneman, 891 A.2d 279, 289 (D.C. 2006) (per curiam) (appended Board Report). The Board therefore agrees with the Committee that Respondent intentionally failed to pursue the lawful objectives of his clients and prejudiced and damaged them, in violation of Rules 1.3(b)(1) and (2). D. Respondent Failed to Keep His Clients Reasonably Informed About the Status of Their Respective Matters, Respond to Their Respective Inquiries, or Explain Matters to the Extent Reasonably Necessary to Permit Them to Make Informed Decisions, in Violation of Rules 1.4(a)-(b) (Baxter, Thomas, Young, Tucker, Miller). Rule 1.4(a) requires a lawyer to keep his or her client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. This requires initiating contact to provide information if necessary. Rule 1.4 cmt. [2] ( The lawyer must initiate and maintain the consultative and decision-making process if the client does not do so and must ensure that the ongoing process is thorough and complete. ); see also In re Bernstein, 707 A.2d 371, 376 (D.C. 1998) (finding a violation of Rule 1.4(b) when the attorney did not inform the client that he filed a lawsuit on the client s behalf, did not inform the client of a settlement offer, and did not promptly respond to client communications). Rule 1.4(b) requires that lawyers explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Respondent failed to keep his clients reasonably informed of the status of their matters and to respond to their inquiries. Instead, he continually lied to his clients - 15 -
regarding the status of their claims. See FF 15, 17, 29, 32, 47, 51, 53, 63, 67, 69. For example, he failed to tell Ms. Thomas and Mr. Tucker about the expiration of the statute of limitations in their cases and, more generally, failed to respond to their requests for information. See FF 31, 51, 61, 62, 79 (failing to inform clients about the statute of limitations); FF 9, 34, 55, 69 (failing to respond to client communications). Each of these inactions and actions establishes a violation of Rules 1.4(a) and (b). See Outlaw, 917 A.2d at 688 (finding a violation of Rules 1.4(a) and (b) when the lawyer became aware of a statute of limitations problem but did not share the problem with her client until almost three years later). The Board therefore agrees with the Committee and finds that Respondent violated Rules 1.4(a) and 1.4(b) in each of the matters at issue. E. Respondent Failed to Provide a Written Statement of the Basis or Rate of His Fees and to Place His Contingent Fee in Writing with a Statement of the Method by which the Fee Was to be Determined, in Violation of Rules 1.5(b) and (c) (Baxter, Thomas, Young, Tucker, Miller). The Committee found that Respondent violated Rule 1.5(b) by failing to provide his clients writings detailing the basis or rate of the fee he would charge and the scope of the representation. The Committee also found that Respondent violated Rule 1.5(c) to the extent that he failed to place his contingent fees in writing, with a statement of the method by which the fees were to be determined in his representation of Ms. Baxter, Ms. Young, Mr. and Mrs. Tucker, and Mr. Miller. 1. Rule 1.5(b) Rule 1.5(b) requires a lawyer to provide a client who has not been regularly represented by the lawyer with a written communication of the basis or rate of the fee, the scope of the lawyer s representation, and the expenses for which the client will be responsible within a reasonable time following the beginning of the representation. The - 16 -
comments to Rule 1.5 state that a client regularly represented by the lawyer has ordinarily... evolved an understanding concerning the basis or rate of the fee. Rule 1.5 cmt. [1]. A new client, however, will not have that understanding and thus a written communication is required. See id. Intermittently providing legal advice does not constitute regular representation. See In re Elgin, 918 A.2d 362, 367 (D.C. 2007) (concluding that there was not regular representation when the attorney represented the client once for $2,500 and then intermittently provided legal advice without payment). Respondent did not provide a writing that set out the scope of his representation or the basis of his fee to any of his clients. FF 4 (Baxter), 27 (Thomas), 50 (Young), 60 (Tucker), 78 (Miller). Therefore, the Board agrees with the Committee that Respondent violated Rule 1.5(b) with respect to the initial representation of all five clients. In regard to the subsequent representation of Ms. Thomas, the Board agrees with the Committee that because Respondent told Ms. Thomas that the subsequent claim would be treated separately from her prior claim Respondent s failure to provide a written basis for his fee or the scope of his representation violated Rule 1.5(b). The Board disagrees with the Committee that Respondent regularly represented Ms. Baxter and that no written communication pursuant to Rule 1.5(b) was necessary for representing Ms. Baxter in her landlord-tenant case. HC Rpt. at 36. Although Ms. Baxter s testimony references a number of matters in which Respondent provided representation for Ms. Baxter, there was no overarching understanding concerning the basis or rate of the fee. See Rule 1.5 cmt. [1]. Ms. Baxter testified that there were numerous matters in which Respondent helped her but did not charge for his services. See Tr. 186:18-187:1 (stating that Respondent helped Ms. Baxter with a number of things - 17 -
over fourteen years and did not charge her for many of them). Respondent also helped Ms. Baxter s daughter in connection with her unemployment payments and did not charge her daughter. See Tr. 238:21-239:6. In light of the numerous previous instances of free representation, and the fact that there had been no prior discussions between Ms. Baxter and Respondent concerning the nature of his fee, the Board finds by clear and convincing evidence that Ms. Baxter did not develop an understanding regarding Respondent s fee. Accordingly, we conclude that Respondent was required to provide Ms. Baxter with a written communication satisfying the requirements of Rule 1.5(b) when undertaking to represent her in her landlord-tenant case. See Elgin, 918 A.2d at 367. The Board also disagrees with the Committee s conclusions regarding Respondent s need to provide a writing to Mr. Tucker detailing the basis or rate of his fee. HC Rpt. at 36. When Mr. Tucker sought Respondent s assistance with the matters relating to the accident, Respondent told Mr. and Mrs. Tucker that he would discuss the charges for the representation at a later date. At this point, Respondent had only represented Mr. Tucker in connection with an earlier personal injury matter. See FF 60. Respondent did not provide Mr. Tucker with a written communication regarding his fee or the scope of representation for that personal injury matter he merely told Mr. Tucker that he would represent him for a one-third contingency fee. Id. Mr. Tucker and Respondent had formed an attorney-client relationship in 2001, but Respondent s representation of Mr. Tucker in connection with the subsequent wrongful termination matter did not commence until December of 2009, and the representation concerning the work-related accident did not commence until February 2010. FF 66; Tr. 17:6-8, 33:2-6, - 18 -
35:20-21. Despite representing Mr. Tucker only once eight years earlier, without a formal engagement letter, the Committee found that there was no clear and convincing evidence that Mr. Tucker had not developed at least a tacit understanding regarding Respondent s fee. The Board disagrees. Respondent had not regularly represented Mr. Tucker and Bar Counsel proved, by clear and convincing evidence, that Mr. Tucker lacked an understanding concerning the basis or rate of the fee for either the wrongful termination matter or the work-related accident. See Tr. 37:10-14 (stating that, in regard to the fee for representation, Respondent said [w]e can discuss that later ); Elgin, 918 A.2d at 367 (noting that the committee found that representing a client only intermittently and without payment throughout a period of ten years was not regular representation ). The record does not include any evidence establishing that Mr. Tucker would have even a tacit understanding of the basis or rate of the fee for the subsequent cases. Therefore, the Board concludes that Respondent violated Rule 1.5(b) for each of the matters in which he represented Mr. Tucker. 2. Rule 1.5(c) Rule 1.5(c) states that a contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined[.] Respondent agreed to represent Ms. Baxter, Ms. Young, Mr. Tucker, and Mr. Miller on a contingency basis for at least one of their claims, but failed to provide a written basis for how any of the contingent fees would be calculated. FF 4, 44, 50, 60, 78. Therefore, the Board agrees with the Committee that Respondent violated Rule 1.5(c) in each of these representations. The Board also agrees with the Committee s finding that there was not clear and convincing evidence that Respondent entered into contingency fee agreements for the - 19 -
other representations at issue the representation of Ms. Baxter in connection with the landlord-tenant matter, the representation of Ms. Thomas, or the representation of the Tuckers in connection with Mr. Tucker s accident. HC Rpt. at 37; FF 12 (Baxter), 66 (Tucker); Tr. 406:11-407:2 (Thomas). Therefore, the Board finds that Respondent did not violate Rule 1.5(c) in these representations. F. Respondent Failed to Surrender Papers and Property in Violation of Rule 1.16(d) (Baxter). The Committee found that Respondent violated Rule 1.16(d) when he failed to comply with Ms. Baxter s request that he provide her with her client file and documents relating to her matters. HC Rpt. at 38. Upon any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client s interests, such as... surrendering papers and property to which the client is entitled.... Rule 1.16(d). [T]he client is owed an immediate return of his file no matter how meager. In re Thai, 987 A.2d 428, 430 (D.C. 2009) (per curiam) (quotations and citation omitted). Ms. Baxter requested her file and documents relating to her matters in writing on January 19, 2012, but Respondent failed to provide them. FF 20; BX 4. Accordingly, the Board agrees with the Committee that Respondent violated Rule 1.16(d). G. Respondent Made False Statements in a Disciplinary Matter and Knowingly Failed to Respond to Lawful Demands for Information from Bar Counsel in Violation of Rules 8.1(a) and (b) (Baxter, Thomas, Young, Tucker, Miller). Rule 8.1(a) prohibits a lawyer from knowingly mak[ing] a false statement of fact in connection with a disciplinary matter. According to Rule 1.0(f), [k]nowingly... denotes actual knowledge of the fact in question. A person s knowledge may be inferred from circumstances. - 20 -
Respondent s responses to the disciplinary complaints of Ms. Baxter and Ms. Thomas included a number of misrepresentations. See, e.g., FF 24, 40. As discussed in greater detail by the Committee, Bar Counsel proved by clear and convincing evidence that Respondent knew of the false nature of these representations. HC Rpt. at 39-40. The Board agrees with the Committee that Respondent violated Rule 8.1(a) by knowingly making false factual statements regarding his representations of Ms. Baxter and Ms. Thomas. Rule 8.1(b) prohibits, inter alia, knowingly fail[ing] to respond reasonably to a lawful demand for information from an admissions or disciplinary authority.... Respondent failed to respond at all to Bar Counsel s lawful demands for information related to Respondent s representation of Ms. Young, Mr. Tucker, and Mr. Miller. FF 23, 76, 82. Bar Counsel established Respondent s knowledge of the requests by clear and convincing evidence. Respondent was either personally served with the requests or requested an extension of time to respond to them. HC Rpt. at 41. Respondent s failure to respond to Bar Counsel s requests for information clearly violated Rule 8.1(b) with regard to all five of these disciplinary matters. See In re Cater, 887 A.2d 1, 17 (D.C. 2005) ( [R]epeated failures to respond to letters from Bar Counsel and orders of the Board... in three separate matters, unquestionably violated [Rule 8.1(b)]. ). H. Respondent Committed a Criminal Act that Reflects Adversely on Honesty, Trustworthiness, or Fitness as a Lawyer in Violation of Rule 8.4(b) (Baxter, Thomas, Young, Tucker, Miller). Rule 8.4(b) makes it professional misconduct for a lawyer to [c]ommit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects. An attorney may be disciplined for committing criminal acts even if the attorney has not been charged with or convicted of a crime it is enough if the - 21 -
attorney s conduct violated a criminal statute and reflects adversely on the attorney s honesty, trustworthiness, or fitness. In re Slattery, 767 A.2d 203, 207 (D.C. 2001). However, to establish a violation of Rule 8.4(b), Bar Counsel must establish the elements of the alleged criminal offense by clear and convincing evidence. See id. Here, Bar Counsel alleged that Respondent committed fraud and forgery in each of the matters at issue through his lies and fabricated court decisions, orders, pleadings, settlement agreements, and checks. In the District of Columbia, first-degree fraud is established when a person engages in a scheme or systematic course of conduct with intent to defraud or to obtain property of another by means of a false or fraudulent pretense, representation, or promise and thereby obtains property of another or causes another to lose property. D.C. Code 22-3221(a). Second-degree fraud eliminates the requirement that the person actually obtains property or causes another to lose property. D.C. Code 22-3221(b). Forgery is established in the District of Columbia when a person makes, draws, or utters a forged written instrument with the intent to defraud or injure another and the instrument is capable of effecting the fraud. In re Slaughter, 929 A.2d 433, 444 (D.C. 2007); see also D.C. Code 22-3241. A [f]orged written instrument includes one that purports to be genuine but which is not because it... [h]as been falsely made, altered, signed, or endorsed[.] D.C. Code 22-3241(a)(1)(A). At issue is the element of intent to defraud, an essential element of uttering a forged written instrument. Cooper v. United States, 28 A.3d 1132, 1135-36 (D.C. 2011); D.C. Code 22-3241(b). A person s intent to defraud, under proper circumstances, may be inferred from the presentment of a forged instrument. Id. at 1136 (quoting Ashby v. United States, 363 A.2d 685, 687 (D.C. 1976)). The Committee - 22 -
concluded that Bar Counsel failed to establish clear and convincing evidence of fraudulent intent for a majority of the alleged violations because there was no evidence that Respondent intended to gain any financial or other advantage from his lies. HC Rpt. at 44; see Slaughter, 929 A.2d at 444 (holding that Bar Counsel was required to show fraudulent intent to establish commission of forgery). The Committee also concluded that Respondent lacked the fraudulent intent required for forgery under D.C. Code 22-3241, because he only gave the documents to his clients, who would presumably not lose money or property as a consequence of honoring the false documents. HC Rpt. at 45. In addition, the Committee held that because Respondent paid money to his clients, he could not have had fraudulent intent. HC Rpt. at 44. We agree with the finding of the Committee that Bar Counsel proved by clear and convincing evidence that Respondent violated Rule 8.4(b) in the Thomas and Tucker matters, but disagree with the Committee s findings that Bar Counsel failed to prove fraud and forgery in the remaining matters. The starting point in our analysis is a case similar to this one, In re Silva, 29 A.3d 924 (D.C. 2011) (Board Report appended). In Silva, the attorney forged and falsely notarized the signatures of the other party on an easement agreement. Id. at 925. He then presented the forged document to his client and later falsely told his client and his law partner that the agreement was recorded. Id. The Court held that the attorney had fraudulent intent regardless of the fact that he never intended to harm his client. Id. at 939-40 (appended Board Report). Here, it does not appear that Respondent intended to harm his clients. In fact, Respondent lent money to his clients and gave them checks that purported to be part of - 23 -
supposed settlements. HC Rpt. at 44 n.13. Regardless, intent may be inferred from the facts surrounding Respondent s conduct and the Court has made it clear that we are not to ignore our common sense in evaluating the facts of a case. Silva, 29 A.3d at 939 (appended Board Report) (citation omitted). Common sense and the record demonstrate that Respondent falsified documents and forged signatures to protect his reputation with his clients and to stifle questions regarding settlement monies. For example, Respondent provided the Tuckers with a false settlement agreement in the automobile accident matter and other falsified documents in an attempt to explain why the settlement monies had not yet arrived. Tr. 67:6-11. Mrs. Tucker testified that she and her husband relied on these falsified documents in retaining Respondent for subsequent matters and that they would not have done so if they had not received the fraudulent settlement monies from the automobile accident matter. Tr. 70:5-10. After the Tuckers inquired about the settlement monies in the work-related accident matters, Respondent continued to give the Tuckers false documents and orders indicating that they would get paid. Tr. 77:1-4. [T]he intent to preserve his reputation or image is sufficient to support the finding that [Respondent] committed a criminal act proscribed by D.C. Code 22-3241(b), and thus violated Rule 8.4(b). Silva, 29 A. 3d at 940 (appended Board Report). There is no question that Respondent forged an instrument in each of these cases or that he caused each document to be uttered by presenting them to his clients. See Silva, 29 A.3d at 938 (appended Board Report). Because there is clear and convincing evidence that Respondent had the intent to deceive his clients and cause them to believe he was pursuing their claims, we conclude that Respondent also possessed the intent necessary for the commission of fraudulent acts. Because Respondent committed these - 24 -
criminal acts, and because fraud reflects adversely on the Respondent s honesty, trustworthiness, and fitness as a lawyer, we conclude that Respondent committed a violation of Rule 8.4(b) in each case. Thus, the Board agrees with the Committee s conclusions regarding the false probate order that Respondent gave to Ms. Thomas and the complaint filed on behalf of Mr. Tucker. The false probate order that Respondent gave to Ms. Thomas is a forged written document because it purported to be genuine but was, in reality, falsely made and signed. See D.C. Code 22-3241(a)(1). The probate order was falsely made because there was no existing probate case for which an order could be issued. The order was falsely signed because Respondent signed the document in the space reserved for the judge. FF 36; BX 19 at 18-19. Bar Counsel proved by clear and convincing evidence that Respondent had the required intent to defraud others through the fabricated order because he told Ms. Thomas that she could use the order to access funds from her husband s bank account. FF 35-36. Ms. Thomas would attempt to access such funds. If the bank had accepted the forged order, Ms. Thomas would have received funds under false pretenses, thereby constituting a financial advantage from Respondent s deceit. Therefore, Respondent had the intent to defraud required for forgery. Finally, the probate order was capable of affecting Respondent s fraudulent scheme because the probate order appeared to be signed by a judge. The complaint filed on behalf of Mr. Tucker in the Circuit Court for the City of Alexandria was also a forged written instrument because it was falsely signed by Respondent. FF 61; see Tr. 107:5-20 (Jesse James, Jr., testified that he did not sign the Complaint or authorize Respondent to sign the Complaint on his behalf). Here, however, - 25 -
Respondent filed the forged written instrument with the court, showing that he intended to pursue a suit in a jurisdiction where Respondent is not licensed to practice law without associating himself with an attorney licensed in Virginia. Bar Counsel provided sufficient evidence that Respondent filed the case under false pretenses with the intent that the clerk would rely on the false signature and purported appearance of an attorney licensed in Virginia. The forgery could have provided Respondent with a means for obtaining financial advantage under the false pretense that a lawsuit had been filed. Finally, the complaint was capable of effecting fraud because it appeared to be signed by an attorney licensed in Virginia. The Board disagrees with the conclusions of the Committee with respect to the rest of Respondent s forged instruments and concludes that there was sufficient evidence that Respondent intended to manipulate each of his clients and maintain his status and reputation with them by providing them with false documents in order to induce them to take or omit particular actions. The relevant statute contains no language mandating that a person who commits fraud must intend to receive a personal financial advantage. Rather, fraud is a generic term which embraces all the multifarious means... resorted to by one individual to gain an advantage over another by false suggestions or by suppression of the truth. In re Shorter, 570 A.2d 760, 767 n.12 (D.C. 1990) (per curiam) (quoting 37 C.J.S. Fraud 1 (1943)). I. Respondent Engaged in Conduct Involving Dishonesty in his Representations in Violation of Rule 8.4(c) (Baxter, Thomas, Young, Tucker, Miller). Rule 8.4(c) makes it professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation[.] In disciplinary actions, - 26 -
dishonesty does not always depend on a finding of intent to defraud or deceive. [District of Columbia] case law has consistently found that when Bar Counsel presents clear and convincing evidence that an action is obviously wrongful and intentionally done, the performing of the act itself is sufficient to show the requisite intent for a violation. However, when the act itself is not of a kind that is clearly wrongful, or not intentional, Bar Counsel has the additional burden of showing the requisite dishonest intent. In re Romansky, 825 A.2d 311, 315-16 (D.C. 2003) (internal citations and quotations omitted). Thus, evidence of a dishonest state of mind is necessary to prove an 8.4(c) violation... [but] that evidence need not rise to the level of an intent to defraud. In re Uchendu, 812 A.2d 933, 939-40 (D.C. 2002) (internal citation omitted). The Board concurs with the Committee s conclusion that Bar Counsel established violations of Rule 8.4(c) by clear and convincing evidence. There is no question that Respondent acted dishonestly he falsified documents and signatures, and knowingly made false statements of fact to the court and his clients. This conduct constitutes the very acts of dishonesty, fraud, deceit, or misrepresentation that are proscribed by Rule 8.4(c). See Uchendu, 812 A.2d at 938-39 (concluding that false representations in a document submitted to a tribunal violated 8.4(c)). In addition, his dishonesty continued in his dealings with Bar Counsel. There is no excuse for this continuing breach of a lawyer s fundamental obligation to be honest and truthful. Silva, 29 A.3d at 942 (citations omitted). J. Respondent Engaged in Conduct that Seriously Interferes with the Administration of Justice in Violation of Rule 8.4(d) (Baxter, Thomas, Young, Tucker, Miller). Rule 8.4(d) states that it is professional misconduct for a lawyer to [e]ngage in conduct that seriously interferes with the administration of justice. Proving a violation of Rule 8.4(d) requires clear and convincing evidence that: - 27 -