DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) T. CLARENCE HARPER, ) Bar Docket No ) Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY Respondent is a member of the Bar of the District of Columbia Court of Appeals (the Court ), having been admitted by examination on June 13, Respondent was not admitted to practice law before the Court of Appeals of Maryland (the Maryland Court ). On September 15, 1999, the Maryland 1 Court disbarred Respondent. Bar Counsel reported the Maryland Court s order to the Court. On October 26, 1999, the Court suspended Respondent pursuant to D.C. App. R. XI, 11(d) and entered an order referring the matter to the Board on Professional Responsibility (the Board ) to recommend whether reciprocal discipline should be imposed. Based on the fact that Respondent did not participate in this proceeding and Bar Counsel has urged the imposition of identical reciprocal discipline, the Board recommends that Respondent be disbarred. The Maryland Misconduct 1 Disbarment when applied to an attorney not admitted by the Maryland Court means permanent exclusion from exercising in any manner the privilege of practicing law in this State. Maryland Rules of Practice and Procedure, Title 16, Chapter 700, Discipline and Inactive Status of Attorneys, Rule (g).

2 In early 1995, Respondent agreed to accept cases from two former Maryland attorneys, Fred Kolodner and Burton M. Greenstein, who had practiced law in Baltimore City before being disbarred by the Maryland Court. Pursuant to the terms of the agreement, Deborah Kolodner, the wife of Fred Kolodner and a principal in Industrial Medical Center, an enterprise which provided physical therapy and treatment facilities for automobile accident and workers compensation claimants, began to refer the clients and files of Greenstein/Industrial Medical Center to Respondent. Respondent was not licensed to practice law in Maryland, so he solicited the assistance of Versteal Kemp, an attorney who was a member of the Maryland bar, to help with the referred cases in early Together they opened the office of Harper & Kemp in Baltimore City. Prior to the start of their business relationship and throughout its existence, Respondent also practiced from an office on Georgia Avenue in the District of Columbia, where he primarily handled personal-injury cases. Kemp maintained an office in Prince George s County where he had a general practice, with a concentration in criminal defense work. In May 1995, Respondent signed a one-year lease for an office for Harper & Kemp; the lease was extended on a month-to-month basis until the office was closed sometime in The firm s stationery reflected the fact that Respondent was a Member of the D.C., and Maryland Federal Bars, while Kemp was a Member of Maryland State and Federal Bars. Respondent signed retainer agreements between the firm s personal injury clients and Harper & Kemp. For some time after the office first opened, Respondent and Kemp alternated in covering the office. After a period of time, Kemp stopped covering the office and coverage was provided solely by Respondent. Respondent established escrow and 2 Kemp disputed the Maryland Court s finding that the two attorneys formed a formal partnership since no partnership document was signed. 2

3 operating accounts on which both he and Kemp were authorized signators, although all of the deposits and withdrawals associated with the accounts were made by Respondent. At the suggestion of Deborah Kolodner, Harper & Kemp employed a person called Mitchell to put the case files in order. Mitchell did not use his real name, Joseph Somerville, because he had previously been the subject of a considerable amount of bad publicity due to his connection with an attorney who had been disbarred. Somerville worked at Harper & Kemp for a little less than a year. During that time, he worked daily with Respondent and saw little of Kemp, who tended to come to the office in the evening and leave notes for Mitchell concerning Kemp s cases. Respondent came to the attention of the Maryland Bar Counsel when several clients filed complaints against Harper & Kemp concerning the handling of their cases. The first client, Brenda Foster, claimed that Respondent solicited the representation of Brenda Foster on behalf of her minor daughter, Linnea Anderson, without the supervision of Kemp. The second client, Frances Bonner, claimed that Respondent agreed to a settlement in her case without obtaining her prior authorization or informing her that she was free to reject the settlement check that Respondent tendered. A third client, Frances Bonner s daughter, Kimberly Bonner, alleged that Respondent failed to act with reasonable promptness and failed to keep her informed about her case. Respondent acknowledged to the Maryland Bar Counsel s investigator that he dealt with most of the clients in Baltimore, that most of the files in the Baltimore office were his cases, and that Kemp had nothing to do with them. The bank records of Harper & Kemp show that between May 1995 and September 1996, Respondent drew fifty-five checks totaling $110,353.93, that were payable to clients 3

4 as distribution of settlement proceeds from the escrow account. He also drew $82, in checks on the escrow account payable to cash, to Respondent personally or to Harper & Kemp. The Attorney Grievance Commission of Maryland filed petitions for disciplinary action against Respondent and Kemp. They were jointly tried and both were found to have violated Maryland disciplinary rules. Kemp was suspended for three years for violations of Rule 5.3 (responsibilities regarding non-lawyer assistants) and Rule 5.5(b)(assisting in the unauthorized practice of law). Respondent was found to have violated five rules: Rule 1.3 for his failure to act with reasonable diligence and promptness in representing a client; Rule 1.4 for his failure to keep his client reasonably informed; section of the Maryland Code for practicing law in a jurisdiction where doing so is a misdemeanor violation of the regulations of the legal profession in that jurisdiction; Rule 8.4(b) for committing a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer and Rule 8.4(d) for engaging in conduct that is prejudicial to the administration of justice. 3 Bar Counsel has recommended identical reciprocal discipline in this case, having concluded that Respondent was accorded due process; that the misconduct violates the ethical rules of the District of Columbia; that there is no infirmity of proof; and that the misconduct does not warrant substantially different discipline in this jurisdiction. In support of her recommendation, Bar Counsel cites to the Court s disbarment of the respondent in the original jurisdiction case of In re Anderson, No (D.C. July 3 The Maryland Court found that Respondent violated Md. Code Ann., Bus. Occ. & Prof (1957), making the unauthorized practice of law a misdemeanor. While no violation of Rule 5.5 was found by the Circuit Court for Prince George s County, the Maryland Court noted that the omission was immaterial inasmuch as... Harper violated [the Business Occupation & Professional Code] and Rule 8.4(b) and (d). Attorney Grievance Comm n v. Harper, 737 A.2d 557, (Md. 1999). 4

5 28, 1986), where the respondent represented a client before the Interstate Commerce Commission ( ICC ) after being disbarred by the ICC and suspended by this Bar for non-payment of dues. Bar Counsel also cites to In re Spiegelman, 694 A.2d 59 (D.C. 1997), a reciprocal case where the Court adopted the Board s recommendation of a one-year suspension with a requirement to prove fitness, but noted that it was doing so with some reluctance... largely because Bar Counsel has not urged a more severe sanction upon us. 694 A.2d at 60 n.1. Bar Counsel also distinguished this case from In re Kennedy, 542 A.2d 1225 (D.C. 1988), an original prosecution of a member of the Bar of this Court, where the Court approved the Board s recommendation of a nine-month suspension with fitness for the respondent who practiced in Maryland without being a member of the Maryland bar. Bar Counsel argues that because Kennedy was an original proceeding, the Board was free to recommend whatever sanction it deemed appropriate, while in this reciprocal discipline matter, the Board should defer to Maryland s judgment to impose disbarment. Respondent has not participated in this proceeding. Analysis Under D.C. App. R. XI, 11(f)(2), reciprocal discipline will be imposed in the District of Columbia unless the attorney demonstrates, or the Court finds on the face of the record on which discipline is predicated, by clear and convincing evidence that one of the five exceptions set out in D.C. App. R. XI, 11(c) applies. The five exceptions are: (1) the procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistent with its duty, accept as final the conclusion on that subject; (3) the imposition of the same discipline by the Court 5

6 would result in grave injustice; (4) the misconduct established warrants substantially different discipline in the District of Columbia; or (5) the misconduct elsewhere does not constitute misconduct in the District of Columbia. If a respondent does not make a showing that an exception applies, the Board may independently consider whether any exceptions are applicable. See In re Bielec, 755 A.2d 1018, 1022 n.3 (D.C. 2000); In re Spann, 711 A.2d 1262, 1263 (D.C. 1998)(citing In re Gardner, 650 A.2d 693, 696 (D.C. 1994)). Where neither Bar Counsel nor the attorney opposes the imposition of identical discipline, the Court has cautioned that we think the role of the Board should be a limited one. The most the Board should consider itself obliged to do in cases whether neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline a situation that we anticipate would rarely, if ever, present itself. Spann, 711 A.2d at 1265; see also Bielec, 755 A.2d at In the Maryland disciplinary case, Respondent actively participated in the hearing at the trial and appellate levels, and Respondent did not raise any procedural issues on appeal. Bar Counsel supports the imposition of identical reciprocal discipline. Respondent is silent and therefore is deemed to have admitted liability and conceded that the imposition of reciprocal discipline is warranted. See In re Goldsborough, 654 A.2d 1285, 1288 (D.C. 1995). Spann advises that the Board is not obliged to go further in an uncontested case such as this, than to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline. Spann, 711 A.2d at

7 While the Board understands that it is not obligated to conduct a further review in an uncontested case, it is unclear under what circumstances the Board should still call to the attention of the Court any exception that may be applicable to the imposition of a reciprocal discipline where a respondent fails to participate, given that D.C. App. R. XI, 11(f)(2) provides for the imposition of identical discipline unless the attorney demonstrates or the Court finds on the face of the record on which discipline is predicated, by clear and convincing evidence that one of the five exceptions in 11(c) applies. See Bielec, 755 A.2d at 1022 at n.3 (reiterating independent authority of the Board to review the record for applicability of exceptions to reciprocal discipline). This uncertainty has been a particular concern of the Board in cases involving the fourth exception to D.C. App. R. XI, 11(c), i.e., whether the misconduct established warrants substantially different discipline in the District of Columbia, because of the precedential value of sanctions that are imposed in disciplinary cases. In this case, for example, the Board recognizes that there could be a fourth exception issue with respect to whether the Maryland Court sanction of disbarment, as it is applied to Respondent as a nonlicensed attorney in Maryland who is not a member of the Maryland bar, is the same sanction as disbarment when it is applied by this Court to an attorney who is licensed by this Court and a member of its Bar. Based on our reading of Spann, we have not explored this issue here. Nor have we explored whether Bar Counsel has properly identified the cases that set the sanction range for the misconduct in this case as a nine-month suspension with fitness on the low end and disbarment on the high end. If this was a contested case, the Board would have further examined the cases cited by Bar Counsel to determine whether they properly establish the range of sanctions for similar misconduct in 7

8 an original jurisdiction case, especially since it is clear that the Anderson case, which establishes the high end of the sanction range, differs from the case at hand in several significant ways. Anderson involved the unauthorized practice of law in the District of Columbia of a member of the Bar of this Court and the substantial financial harm that the respondent s misconduct caused to his two clients. Specifically, the respondent had held himself out as an ICC practitioner and a lawyer in the District knowing that he had failed to pay District bar dues for more than five years and knowing that he had been disbarred by the ICC. The respondent accepted substantial legal fees from his two clients before taking on the task of filing applications at the ICC for their operating authority. In the first case, he significantly delayed filing the application, filing only after being contacted by Bar Counsel. In the second case, he never completed the filings for permanent operating authority, resulting in the temporary closure of his client s trucking business. Additionally, Anderson did not cooperate with Bar Counsel, and he did not appear at the hearing. The Board adopted the Hearing Committee s recommendation that disbarment was appropriate because Anderson had demonstrated a willful disregard of legal authority and a penchant for cheating clients along with a show of disdain for the Board s processes. The Board also recommended that respondent be required to pay restitution in the amount of $2,000 to his client who had paid legal fees and received no legal work in return. Anderson did not take exception to the Board s disbarment recommendation; consequently, the Court deemed the allegations admitted under D.C. App. R. XI, 7(2) and accepted the Board s disbarment recommendation. If this was an original case or if Respondent had participated in this proceeding and filed an exception, we believe that the Board would have been free to explore the misconduct at issue as it did in 8

9 Spiegelman, a pre-spann proceeding, where the Board was called upon to determine whether to impose reciprocal discipline after the Maryland Court disbarred respondent, a licensed attorney in the District of 4 Columbia, for practicing in Maryland without being a licensed member of the Maryland bar. There, the Board rejected the disbarment cases that Bar Counsel urged the Board to follow and found the original case of Kennedy to be more appropriate for determining the appropriate discipline. In Kennedy, the respondent, who was a member of the District of Columbia bar but not a member of the Maryland bar, had been enjoined by the Maryland Court from engaging in the unauthorized practice 5 of law from an office in Maryland with a partner who was licensed in Maryland. The Board noted that his activities, which took place over a period of more than four years, included appearing in Maryland courts without complying with the requirements of Maryland s former Rule 20 governing pro hac vice 6 representation, conferring with the state s attorney and signing court documents. Despite signing a letter 4 In Spiegelman, the Maryland Court considered two separate complaints of misconduct. In the first, the respondent accepted two cases from a client. He prepared and signed his and his partner s names to a complaint and a jury demand in one matter and prepared a complaint in the other matter. Sometime later, the respondent decided that neither case was worth pursuing and he worked no further on them, without his client s consent. After the first complaint was dismissed, the respondent failed to notify his client. He also failed to notify Maryland Bar Counsel of the dismissal during an investigation and attempted to mislead Bar Counsel about the handling of the case. In the second complaint, the respondent accepted and ultimately settled a personal injury case without the knowledge or supervision of his Maryland partner, neglected to pay a medical provider bill and denied having signed an Authorization and Agreement obligating him to do so, even though the document signed by the respondent was produced. In both complaints, there was testimony that the respondent s partner, who was a member of the Maryland bar, never saw or worked on the documents in question and never authorized respondent to sign his name to any document. 5 Kennedy v. Bar Ass n of Montgomery County, Inc., 561 A.2d 200 (Md. 1989). 6 The nature of the respondent s practice is set out more fully in Kennedy, 561 A.2d at 200. During the course of his general practice from his office in Maryland, the respondent produced 90% of the business and between 80% and 90% of the work, including the work on more than 4,200 collections matters for doctors for which he received 75% of the income. 9

10 with the Unauthorized Practice of Law Committee of the Montgomery County Bar Association certifying that he would not practice law in Maryland without being properly admitted in November 1985, and despite writing a letter in May 1986 stating that he continued to abide by his certification, the respondent continued to engage in actions that constituted the practice of law in Maryland until the Bar Association for Montgomery County obtained an injunction on April 19, 1988, which the respondent then appealed. 7 The respondent actively participated in his case before the Board and before the Court where he objected to the use of the Maryland trial court transcripts to establish his misconduct. The Board recommended a sanction of a nine-month suspension with proof of fitness before reinstatement based on the seriousness of his misconduct, his record of prior discipline, his repeated and intentional violation of the requirements for practice in Maryland and the absence of factors in mitigation. The Court accepted the Board s recommendation, comparing the case to In re Rosen, 570 A.2d 728 (D.C. 1989) (where a respondent with a prior disciplinary record received a nine-month suspension with a requirement to prove fitness before reinstatement for misrepresenting material facts in applying for admission to the Maryland Bar). In Spiegelman, the Board urged non-identical reciprocal discipline, noting in its Report that is appended to the Court s decision [t]he District of Columbia Court does not have the same interest in protecting itself and the District s citizens from any practice by Respondent. The Board submits that the interest in the District of Columbia in disciplining Respondent extends only to imposing a sanction within the range of sanctions imposed here for the same misconduct in an original jurisdiction case. To impose 7 Bar Counsel instituted the case against respondent following the decision of the Maryland Court that confirmed in part and reversed in part the injunction granted by the Circuit Court for Montgomery County. 10

11 disbarment here because the Maryland Court had the added motive of protecting itself from unauthorized practice would work a grave injustice. 694 A.2d at 62. In recommending a one-year suspension with fitness, the Board looked to the sanctions imposed by the Court in Kennedy. The Board recommended a greater sanction because one client lost a claim and because the respondent was not candid during the disciplinary investigation, fabricated evidence at the hearing and did not acknowledge the wrongfulness of his conduct. Neither the respondent nor Bar Counsel filed exceptions to the Board s Report and Recommendation. The Court accepted the Board s recommendation and imposed non-identical reciprocal discipline in the form of a one-year suspension from the practice of law with a requirement that the respondent demonstrate fitness before resuming practice. 8 Factually, the case before us appears to be very similar to Kennedy and very different from Anderson. For that reason, we want to make it clear that the Board is not agreeing with Bar Counsel that disbarment is the established outside range for a sanction in an original case involving a licensed District of Columbia attorney who engages in the unauthorized practice of law in another jurisdiction where clients have not been substantially harmed. Such conduct would indeed be serious and would warrant a severe sanction; but we are not prepared at this time to foreclose the opportunity of a future respondent who is disciplined for engaging in the unauthorized practice of law in another jurisdiction to argue that the 8 Bar Counsel suggests that the Court would have supported disbarment in Spiegelman if Bar Counsel had filed an exception to the Board s report. This is Bar Counsel s interpretation of the Court s footnote. Spiegelman, 694 A.2d at 60 n.1. The Court states that the respondent s conduct might have called for a greater sanction had the conduct occurred in the District, where respondent, unlike in Maryland, is a member of the Bar and suggests that a greater sanction might also have been imposed if Bar Counsel had filed an exception to the Board s Report. Id. Still, it is not clear that the sanction would have been disbarment. 11

12 imposition of reciprocal disbarment in the District might work a grave injustice under a certain set of circumstances. The Board recognizes, however, that there are two differences between this case and Kennedy. First, the procedural posture of this case is different. The Board is not faced with an original matter, but instead is faced with a reciprocal case based on an order of the Maryland Court. This Court requires that we defer to a foreign disciplining court and impose identical discipline unless to do so would be an obvious miscarriage of justice. Spann, 711 A.2d at Second, and for us the most significant and controlling factor in this case, Respondent did not participate in this proceeding and argue for the right to keep his license to practice law in this jurisdiction, unlike the respondent in Kennedy. Under D.C. App. R. XI, 11(c)(4), he could have argued that the imposition of identical reciprocal discipline in this case would have been a grave injustice. He did not, and therefore we need not reach that conclusion here. Conclusion and Recommendation For the reasons discussed above, the Board has determined that identical reciprocal discipline should be imposed. We recommend that Respondent be disbarred. BOARD ON PROFESSIONAL RESPONSIBILITY Dated: December 12, 2000 By: Joanne Doddy Fort 12

13 All members of the Board concur in this Report and Recommendation except Ms. Taylor, who did not participate. 13