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: : : GARY A. COURTOIS, : Bar Docket No : : Prior Proceedings: : No. 96-BG-1642 (D.C. Nov. 19, Petitioner. : 1998) (Terry, J. Farrell, J., and : Newman, S.J.) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY I. BACKGROUND Petitioner in this proceeding seeks reinstatement to the District of Columbia Bar seven (7) years after his disbarment on consent based upon his guilty plea to and criminal conviction on one count of income tax evasion, 26 U.S.C. 7201, in the United States District Court for the District of Maryland. PX 4/BX 14. The petition was assigned to Hearing Committee Three (the "Committee"). A hearing was held on March 3, Full post-hearing briefing followed. On May 11, 2006, the Committee issued its report, finding that Petitioner established by clear and convincing evidence the requirements for reinstatement set forth in D.C. Bar R. XI, 16(d), as interpreted and expanded upon in In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985), and is therefore fit to resume the practice of law in this jurisdiction. In addition, pursuant to 16(f), the Committee recommended imposition of a condition of restitution to the Internal Revenue Service (the "IRS") as part of the reinstatement order. Specifically, the Committee would require Petitioner, on a quarterly basis, to report to the Bar on the status of his efforts to work out an Offer in Compromise ( OIC ) with the IRS; provide a copy to the Bar of any final

2 agreement reached between Petitioner and the IRS concerning restitution; and, annually, furnish to the Bar proof of full compliance with the terms of the OIC. Petitioner concurs with the Committee s report and recommendation. Letter of Melvin G. Bergman to Elizabeth J. Branda, dated June 12, Bar Counsel agrees with the facts found, and accepts the Committee s application of the Roundtree analysis, except to the extent that the Committee determined that Petitioner made sufficient efforts to remedy past wrongs (prong three of the Roundtree standard). Letter of H. Clay Smith, III to Elizabeth J. Branda, dated May 22, Specifically, Bar Counsel contends that Petitioner cannot be determined fit unless and until he produces a restitution agreement with the IRS. After examining the record in this matter, we conclude that the Committee s findings are fully supported by substantial evidence in the record and that Petitioner demonstrated, by clear and convincing evidence, his fitness to practice law, including his showing on the question of restitution. Under these circumstances, we adopt as our own and incorporate herein the Hearing Committee s Report. A copy of the Committee s Report is appended hereto. Additionally, in light of Bar Counsel s exception to the Committee s determination on the sufficiency of evidence that Petitioner has made bona fide efforts to make restitution, we elaborate below on that issue and conclude that Petitioner has taken and continues to take all reasonable steps toward achieving a settlement with the IRS. II. OBLIGATION OF RESTITUTION In a reinstatement proceeding, fitness is the key issue. Where the underlying disbarment was based in significant part upon the wrongful taking or improper retention of 2

3 money, the court requires a showing, by clear and convincing evidence, that the petitioner: (1) acknowledges that there has been financial harm as result of the petitioner s misconduct, and (2) has taken reasonable steps to make restitution. In re Kerr, 675 A.2d 59 (D.C. 1996) (per curiam). The petitioner in Kerr sought reinstatement more than 20 years after disbarment. The Court of Appeals (the "Court") sua sponte raised the issue of restitution to the former clients who suffered harm. The petitioner responded to the Court with an acknowledgment of her obligation and a plan for making restitution (only one of two former clients could be found) to which neither Bar Counsel nor the Board excepted. The Court ruled that such payments were sufficient for purposes of the restitution requirement. In the instant case, it is undisputed that Petitioner acknowledges and accepts that he is obligated to pay restitution to the IRS. And, while there is not yet a restitution plan in place, the record demonstrates that Petitioner has made significant efforts over the past several years, with the assistance of a tax attorney, to reach an agreement with the IRS. 1 Such a scenario was deemed sufficient to satisfy the requirement to remedy past wrongs in In re Roxborough, 775 A. 2d 1063 (D.C. 2001) (per curiam). In that case, disbarment resulted from several instances of serious misconduct, including tax evasion. Reinstatement was granted even though the petitioner was in the process of repaying his 1 The record is unclear as to the amount of Petitioner s outstanding debt to the IRS. In the sentencing order on his guilty plea, the trial judge found that Petitioner s unpaid taxes amounted to approximately $200,000. BX 15. However, the Court expressly declined to order restitution, noting that the IRS has a mechanism for settling with taxpayers. Id. In the Tax Court proceeding against him, the Court determined that Petitioner s federal tax liability amounted to over $200,000 for tax years 1988, 1989, and Settlement Decision of U.S. Tax Court, dated March 3, 2002 (PX 11). Petitioner estimates that with interest and penalties, the debt probably rose to approximately $800,000 (Tr. 109). Thereafter, all of his property was seized in an IRS enforcement action. Although the IRS never notified him of the adjusted obligation after the offset from the sale of his seized property (i.e., residences, cars, and personal property), he estimates that the IRS netted over $200,000 from all of his seized property. Tr

4 clients and had not yet commenced restitution to the IRS because, as here, the petitioner was engaged in the process of compromising his debt. Ideally, full restitution is paid prior to seeking reinstatement. That is the easy case. However, where, as here, Petitioner has no control over the IRS s timetable in regard to ultimate approval of an OIC, he has, to date, been unable to submit an approved plan. In lieu of an OIC, however, the Court may, as it did in Kerr, and as suggested by Petitioner s attorney in this proceeding, 2 direct Petitioner to submit his own repayment plan as a show of willingness to make restitution (e.g., in the amount and on the terms of the pending OIC). In any case, a condition of reporting to ensure compliance with the restitution obligation, along the lines recommended by the Hearing Committee Report, is appropriate to protect the public, the Court, and the reputation of the legal profession. III. CONCLUSION We find that Petitioner Gary A. Courtois (1) has the moral qualifications, competency, and learning in the law required for the practice of law, and (2) that his resumption of the practice of law will not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest. Accordingly, we recommend that the Court find Petitioner fit to resume the practice of law and that, pursuant to D.C. Bar R. XI, 16(f), the Court enter an order of reinstatement, with the following conditions: (1) Petitioner submit a restitution plan (e.g., a copy of a fully authorized OIC) within thirty (30) days of the reinstatement order, and (2) that he submit to 2 As counsel for Petitioner suggests, there are other methods to ensure that the Petitioner complies with his obligation to make restitution. R. Tab 16, Letter from Melvin G. Bergman to Elizabeth J. Branda, dated June 12, He proposes imposing a condition that requires Petitioner to begin restitution payments by a date certain. If the Petitioner has not begun restitution and/or finalized a formal repayment agreement with the IRS, he must show cause why his license should not be suspended. Id. 4

5 Bar CounseI and the Board, on an smj-amud basis, notification and proof of payments in compliance with he terms of the plan until such time as he has paid restitution itz full. BOARD ON PR0FESSXC)NAL RESPONSIBILITY By: All members of the Board concur in this Report aod Recomm.endation except Ms. Coghilt-Howard, who did not participate.

6 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY HEARING COMMITTEE NUMBER THREE In the Matter of: : : GARY A. COURTOIS, : : Petitioner. : D.C. App. No. 96-BG-1642 : Bar Docket No A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No ) : REPORT AND RECOMMENDATION A. Background On or about May 24, 1996, Petitioner, Gary A. Courtois ( Petitioner ), pled guilty to one count of income tax evasion, 26 U.S.C. Section 7201, in the United States District Court for the District of Maryland. Bar Exhibit ( BX ) 14. On September 11, 1996, he was sentenced to four months of incarceration and four months of home detention, to be followed by two years of supervised release. The Court also directed that Petitioner cooperate fully with the Internal Revenue Service in connection with the payment of any taxes, penalties and interest owed. BX 15. Petitioner had initially been admitted to the Bar of the Court of Appeals of Maryland on December 29, As a result of his conviction for income tax evasion, on October 10, 1996, Petitioner consented to his disbarment as a member of the Maryland Bar. On October 11, 1996, the Court of Appeals of Maryland ordered that Petitioner be disbarred by consent, effective November 8, 1996.

7 On January 16, 1997, the District of Columbia Court of Appeals (the Court ) ordered that Petitioner be temporarily suspended from the practice of law in the District of Columbia. On February 27, 1998, pursuant to D.C. App. R. XI, 12, Petitioner consented to disbarment by the Court. On November 19, 1998, the Court disbarred Petitioner from the practice of law in the District of Columbia on the basis of his disbarment in Maryland; his consent to disbarment in the District of Columbia; and his conviction for tax evasion. The disbarment was nunc pro tunc to February 14, 1997, the date on which Petitioner filed his affidavit as required by D.C. App. R. XI, 14(g) (formerly 14(f)). On July 15, 2005, Petitioner filed with the Board his replies to the reinstatement questionnaire and, on September 13, 2005, he filed a petition for reinstatement. Bar Counsel filed its answer to the petition for reinstatement on October 27, An evidentiary hearing was held on March 15, 2006 before a Hearing Committee comprised of Laurie B. Davis, Esquire, Chair; Ms. Susan L. Butler; and Eric L. Yaffe, Esquire. At the hearing, Petitioner and Bar Counsel introduced numerous exhibits without objection, and all exhibits were admitted. Following the hearing, on April 12, 2006, Petitioner filed a Memorandum in Support of Reinstatement. On April 19, 2006, Bar Counsel filed its Brief of Bar Counsel, in which it stated that it did not object to Petitioner s reinstatement so long as Petitioner met certain conditions. B. The Roundtree Factors A disbarred attorney must wait a minimum of five years from the effective date of disbarment before he or she is eligible to apply for reinstatement. Rule XI, 16(a). In order to obtain reinstatement to the practice of law in this jurisdiction, a petitioning 2

8 attorney must satisfy the fitness standard set forth in District of Columbia Court of Appeals R. XI, 16(d), which provides in relevant part:... the attorney seeking reinstatement shall have the burden of proof by clear and convincing evidence. Such proof shall establish: (1) That the attorney has the moral qualifications, competency, and learning in law required for readmission; and (2) That the resumption of the practice of law by the attorney will not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest. In assessing whether the attorney has met his burden under 16(d), the Court relies on the following five factors as set forth in In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985): 1. the nature and circumstances of the misconduct for which the attorney was disciplined; 2. the attorney s recognition of the seriousness of the misconduct; 3. the attorney s post discipline conduct, including steps taken to remedy past wrongs and prevent future ones; 4. the attorney s present character; and 5. the attorney s present qualifications and competence to practice law. C. Evidentiary Hearing 1. At the March 15, 2006 evidentiary hearing, three witnesses testified on Petitioner s behalf -- Allen Dale, Timothy Driscoll, and Roger William Hale. Petitioner also testified. We find the testimony of all these witnesses, including Petitioner s, to be 3

9 credible. Mr. Dale was admitted to the bar in the District of Columbia in 1978 and practices criminal law, primarily in the District of Columbia. Tr. at He met Petitioner at least twenty years ago, and used Petitioner as his local counsel in Maryland when he had criminal matters in state court there. Tr. at Mr. Dale believed that Petitioner was a very ethical and competent attorney and considered him to be top notch. Tr. at Mr. Dale was aware that Petitioner had gotten into trouble with the Internal Revenue Service, had been convicted of tax evasion, and was imprisoned. He also knew that Petitioner had been disbarred. Tr. at 11. Additionally, Mr. Dale was aware that Petitioner was charged in the mid-1980 s with possession of cocaine in Prince George s County. He had read about these charges but had never observed Petitioner using cocaine. Tr. at After Petitioner was released from prison on the tax evasion charge, Mr. Dale had contact with him, and has continued to have contact with him to the present day. Tr. at Mr. Dale and Petitioner discussed Petitioner s problems, and Mr. Dale has periodically employed Petitioner to do investigative work, legal research, and cover the office when Mr. Dale is on vacation. Tr. at Mr. Dale has paid Petitioner $30 an hour, but has paid him a total of no more than $2,000 to $3,000 in any given year. Tr. at 18. Mr. Dale recounted a particular case in federal court in Maryland on which Petitioner worked for him. It was a complex case that involved several interviews of Mr. Dale s client, who was incarcerated. Petitioner handled the interviews and reviewed documents with the client. Tr. at

10 4. Mr. Dale believes that Petitioner has rehabilitated himself and would be an asset to the profession of law. He is of the opinion that the Petitioner should be reinstated. Tr. at Timothy Driscoll testified that he has been a member of the Maryland Bar since 1993 and the District of Columbia Bar since He practices principally in the areas of workers compensation, disability law, and personal injury. Tr. at Mr. Driscoll met Petitioner in May of 1993 when Mr. Driscoll was an associate in the law firm of Horowitz & Peran. Mr. Driscoll observed Petitioner having interactions with the senior partners of the firm and giving the partners a lot of advice in areas that they were not good in. Tr. at He considered Petitioner to be a stellar attorney who made sure that things were handled well. Tr. at The first ten years of the relationship between Mr. Driscoll and Petitioner was purely professional. Id. Mr. Driscoll ran into Petitioner in the 2002 to 2003 time frame and, at that time, talked about Petitioner s present situation. Petitioner and Mr. Driscoll have discussed the circumstances of Petitioner s disbarment on several occasions and Mr. Driscoll has been aware of the tax problems that Petitioner had. Tr. at Mr. Driscoll said that Petitioner told him that he loved practicing law and felt that as a result of his conviction he had lost his identity. Petitioner told Mr. Driscoll that he had lost everything and would do everything he could to get his life back. Mr. Driscoll believed that Petitioner s feelings go beyond remorse. Tr. at Since January 2005, Petitioner has worked as Mr. Driscoll s paralegal, and has handled interviews, investigations, and the preparation of paperwork. He has also 5

11 helped with pleadings. When Mr. Driscoll gets a criminal case, Petitioner discusses with Mr. Driscoll how the case should be analyzed and handled. Tr Mr. Driscoll pays Petitioner $100 per hour. Tr. at 23. Petitioner is not a salaried employee, but comes into the office at least four days each week. Depending on the work that needs to be done, Petitioner may be in the office on any given day for as little as ten minutes or as much as five hours. Tr. at Mr. Driscoll testified that Petitioner keeps up with the law. He said that he brings questions to Petitioner that require ongoing research. While Petitioner s knowledge of civil law and procedure is not as broad as Mr. Driscoll s, the two educate each other and are sort of evening each other out as we go along. Tr. at According to Mr. Driscoll, no one has gone through more or has been a greater survivor than Petitioner. Mr. Driscoll believes that Petitioner has rehabilitated himself and is fit to practice law again in the District of Columbia. Tr. at Mr. Driscoll was not sure of the details of Petitioner s tax evasion case and did not know why Petitioner had underreported his income. He stated, however, that he knew that Petitioner had learned to live on only a fraction of what he was earning before, and was living a more conservative lifestyle. The changes in Petitioner s lifestyle and attitude formed the basis for Mr. Driscoll s opinion that Petitioner was rehabilitated. Tr. at Roger William Hale was admitted to the Bar of Maryland in 1977 and the District of Columbia in His primary practice area is criminal law. Ten percent of his work is in the District of Columbia and ninety percent is in Maryland. Tr. at Mr. Hale has known Petitioner since 1978 when the two were working together as Assistant State s Attorneys for Prince George s County. He had heard many 6

12 years ago that Mr. Courtois and another attorney were under investigation for drug possession, but was not aware that Mr. Courttois had been convicted. Tr. at 50. Mr. Hale was aware, however, that Petitioner had problems with the Internal Revenue Service because it was the talk of Upper Marlboro. Tr. at 36. Mr. Hale was also aware that Petitioner had been disbarred in Maryland and the District of Columbia. Tr. at Mr. Hale testified that Petitioner had a great reputation prior to his conviction. He was not afraid to go to trial and won the vast majority of cases he tried. He was, according to Mr. Hale, an excellent trial lawyer. Tr. at Since Petitioner s troubles with the law, Mr. Hale has kept in touch with him. Petitioner has done work from time to time for a lawyer who is a friend of Mr. Hale s, and Mr. Hale has run into Petitioner at his friend s office. Tr. at In addition, Petitioner has done investigative work for Mr. Hale in criminal cases, both in Maryland and the District of Columbia. Mr. Hale values Petitioner s opinion in these cases. Tr. at 39. Mr. Hale pays Petitioner $75 per hour. Mr. Hale testified that the quality of Petitioner s work is excellent. Petitioner keeps up with the law, and has corrected Mr. Hale on search and seizure matters when Petitioner observed issues that Mr. Hale had missed. Petitioner s insights made a substantial difference in those cases. Tr. at Mr. Hale testified that Petitioner is ashamed of what happened to him and is very remorseful. He believes that Petitioner will never get into any type of legal trouble again and is motivated to come back and prove that he is a good lawyer. Tr. at Mr. Hale had no hesitation in saying that Petitioner is fit once again to become a member of the District of Columbia Bar. Tr. at 42. 7

13 17. Petitioner, Gary A. Courtois, testified that he was first admitted to practice in Maryland and began his career as a prosecutor in Prince George s County. He was there for about three and one half to four years, and left in 1980 to begin his private practice. Tr. at 52. He was admitted to the Bar of the District of Columbia in the late 1970 s. Tr. at 53. In private practice, Mr. Courtois handled mainly criminal cases in Prince George s County and Montgomery County in Maryland, and in Washington, D.C. Id. 18. According to Petitioner, in 1982 he and his then wife experimented with cocaine. Petitioner and a number of other attorneys were investigated and charged, and Petitioner pled guilty to possession of cocaine. He received probation. Petitioner testified that he reported the plea to the Maryland and District of Columbia Bars. He received a private reprimand from the Maryland Bar and a letter from the District of Columbia Bar indicating that the Bar would not take formal action but that any further incidents could result in disciplinary action. He has not used any drugs since. Tr. at In the 1980s and early 1990s, Petitioner had a successful law practice. He and his then wife, however, were living over their heads and enjoying the money that Petitioner had made. Eventually, the relationship between Petitioner and his wife deteriorated and they had a bitter divorce. Petitioner s wife was aware that Petitioner had not reported all of his income, and she disclosed this to the Internal Revenue Service. The IRS conducted an investigation that lasted several years, and ultimately the IRS charged Petitioner with tax evasion. Tr. at Petitioner was convicted and 8

14 incarcerated for four months in the Petersburg (Virginia) Federal Prison, and then served four months of home detention. Tr. at Petitioner conceded that he was to blame for the tax evasion charge. He said that he was living an expensive lifestyle, he and his wife were having marital difficulties, and he threw money at the problem. Tr. at 58. Petitioner stated that a lot of clients in the criminal law pay cash and, while there is no excuse for it, it is easy not to report income. Tr. at Petitioner testified credibly and emotionally about the impact that the conviction had on his life. He said that his actions greatly impacted the people he loved and those who looked up to him and depended on him. He said that he had embarrassed himself, his profession, his family, and his friends. Petitioner stated that his daughter was nine when he went to jail and that it was difficult back then to explain the situation to her. Id. 22. Petitioner s daughter is now 19 and he has an excellent relationship with her. She is in college. The two had a discussion about what Petitioner had done and he explained that it was illegal and that it had ruined his life. He told her that what he did was wrong and that all people have to pay their fair share of taxes. Tr. at Including interest and penalties, Petitioner initially owed the Internal Revenue Service over $200,000. The IRS took most of Petitioner s possessions, including his residences, cars, and personal property, as compensation for the money owed. Tr. at Petitioner eventually hired attorneys to deal with the IRS and resolve the matter. He began a process involving an offer in compromise pursuant to which the IRS examines assets and earning ability and agrees to accept an amount in lieu 9

15 of the taxes owed. The IRS provides individuals with a term of years to make the payments. Tr. at Petitioner testified that the offer in compromise has been approved by the IRS and that he is awaiting the agency s final signature. See Petitioner Exhibits 15, 18; Tr. at Mr. Courtois said that he has paid all of his current taxes, and that he has arranged for a financial manager in the event he gets his license back and begins to earn more money. He will escrow his money for taxes. He says that he has learned his lesson, and that he would never want to engage in wrongful conduct again that would bring personal dishonor to him and embarrassment to the people he loves. Tr. at 70, 94. We credit that testimony. Beginning in 2002, Petitioner saw a trauma counselor to help him deal with his disbarment as well as family issues. He stopped seeing the counselor after a couple of years and says he now feels better about his situation. Tr. at Throughout Petitioner s testimony, he expressed remorse for his actions that led to his disbarment. Petitioner accepted responsibility for his decisions and actions, Tr. at 58, and characterized his tax evasion as the worst mistake [he] ever made, Tr. at 59. Petitioner testified that he has learned a lot, feels bad about what [he] did, Tr. at 70, and never want[s] to lower himself again like he did with his tax evasion and disbarment. Id. We credit Petitioner s testimony, both his words and his demeanor at the hearing, as evidence of remorse. 26. Petitioner is currently working for a number of attorneys, including Ken Boehm in Marlboro, Mr. Driscoll, and Mr. Dale. Tr. at 98. From 1997 to 2004, all of Mr. Courtois income came from work he has performed as an independent contractor doing investigations and research for other lawyers. Tr. at 105. During this timeframe, 10

16 Petitioner has earned between $9,000 and $32,000 each year. PX 17. Petitioner testified credibly that over the years he has kept up with the law, reading the Maryland Daily Record, the event sheets, and Supreme Court web sites. He has kept up his research skills, and says that he will take CLE courses as appropriate to learn about changes in the law. Tr. at D. Analysis and Recommendation The Committee concludes that Petitioner has met has burden of showing, by clear and convincing evidence, that under D.C. Bar R. XI, 16(a) and the Roundtree factors he should be reinstated to the Bar of the District of Columbia. We analyze each of the specific Roundtree factors below. 1. The Nature and Circumstances of the Misconduct Petitioner engaged in a serious offense that warrants careful scrutiny in assessing whether he has met his burden of proof that he should be reinstated. He pled guilty to one count of federal income tax evasion in violation of 26 U.S.C. Section 7201, and was sentenced to serve four months in a federal penitentiary and four months in home detention with electronic monitoring. BX He evaded paying income taxes because he and his then wife enjoyed a high lifestyle. In addition, his clients paid him in cash and he succumbed to the temptation of not reporting all of that cash as income. Tr. at There is no question that Petitioner knew that what he was doing was wrong and that he nonetheless willfully and intentionally failed to report income to the IRS. The United States Tax Court, in Courtois v. Commissioner of Internal Revenue, Docket No , dated February 25, 1998, determined that Petitioner s tax deficiencies for 11

17 the years 1988, 1989, and 1990 totaled approximately $120,000, not including penalties and interest. BX 13. Although Petitioner engaged in a serious criminal offense, a conviction for tax evasion does not in itself preclude him from being reinstated. Individuals who have violated the tax laws or been convicted of other non-violent criminal offenses have been later reinstated to the Bar of the District of Columbia where they have otherwise met the Roundtree factors. See, e.g., In re Casalino 741 A.2d 38 (D.C. 1999) (attorney disbarred after having pled guilty to tax fraud was later reinstated); Anderson, 741 A.2d 37 (D.C. 1999) (reinstatement granted to attorney who had pled guilty to three counts of false pretenses). In this case, we note that Petitioner did not embezzle client funds, violate the rules of professional responsibility with respect to a client matter on which he was engaged, or in any other way commit misconduct directly related to his law practice. While the tax evasion conviction concerned Petitioner s failure to report income he received as an attorney, the Committee does not consider his conduct to have occurred in the context of his law practice in the manner in which the D.C. Court of Appeals has considered that factor in ascertaining the gravity of a petitioner s wrongdoing. See In re Borders, 665 A.2d 1381, 1382 (D.C. 1995). As discussed further below, when the nature and circumstances of Petitioner s misconduct is weighed along with Petitioner s acceptance of responsibility for his actions, his willingness to work with the Internal Revenue Service to make restitution, his payment of his taxes and careful attention to the tax laws and his responsibilities since his release from prison, and his current character and qualifications, reinstatement is appropriate. 2. Recognition of the Seriousness of the Misconduct 12

18 Petitioner clearly recognizes the seriousness of his misconduct. First, following his indictment, he pled guilty to income tax evasion, thus accepting responsibility for his misconduct. He did not challenge the charges or proclaim his innocence at trial. Second, Petitioner consented to disbarment in both Maryland and the District of Columbia. Thus, once again, rather than suggest that he was fit to continue the practice of law, he accepted responsibility for his misconduct and agreed to be disbarred from both jurisdictions. Third, multiple witnesses at the hearing testified that Petitioner was remorseful about his past conduct and knew that what he had done was wrong. Petitioner himself testified credibly that he recognized that his conduct was wrong and explained this to his daughter, and that he would never fail to pay his taxes again or do anything else to undermine his integrity and embarrass those who depended on him. He also never sought to blame others for his misconduct. In the circumstances, the Committee believes that Petitioner has recognized the seriousness of his misconduct and met his burden with respect to the second Roundtree factor. 3. Post-Discipline Conduct-Remedying Past Wrongs and Preventing Future Ones a. Steps Taken to Remedy Past Wrongs Petitioner has taken several steps to remedy his past wrongs. He has paid his income taxes since his release from prison and plans to escrow funds for income tax purposes if he is reinstated. In addition, he obtained counsel who has assisted him in resolving his problems with the Internal Revenue Service. Petitioner has negotiated a resolution with the Internal Revenue Service for monies owed, and the parties are close to reaching an agreement on an Offer in Compromise under which Petitioner will have a certain period of time to pay off his debts to the IRS. 13

19 Nevertheless, Bar Counsel is correct to point out that appropriate restitution is a prerequisite to establishing that an individual is fit to be reinstated to the Bar, citing In re Morrell, 859 A.2d 644 (D.C. 2004). Restitution, however, need not be completed before an individual is reinstated. In re Roxborough, 775 A.2d 1063, 1078 (D.C. 2001). Bar Counsel has requested that Petitioner s reinstatement be conditioned on Petitioner complying with whatever agreement he enters into with the Internal Revenue Service. Petitioner himself does not object to this, stating at the hearing through his counsel that it would be appropriate for reinstatement to be conditioned upon the matter with the IRS being fully resolved. Tr. at While the Committee believes that Petitioner has met his burden of showing that he has made serious efforts to correct his past wrongs, we recommend that Petitioner s reinstatement be conditioned upon him notifying the Bar when he enters into a final agreement with the IRS (and providing a copy of the agreement to the Bar), and thereafter providing the Bar with evidence, each year, that he is making timely payments as required by the agreement. b. The Prevention of Future Wrongs Petitioner s misconduct appears to have been born from a high style of living that was centered on his wife and her needs, coupled with his way of dealing with her which he now realizes was a terrible mistake. Tr. at 58. Petitioner s life has changed since that time in that he and his wife are now divorced and Petitioner is remarried to a woman who is, according to Petitioner, more cost-conscious. Tr. at Petitioner himself has adopted a frugal lifestyle and has managed to live on more modest means. 14

20 Petitioner has also taken other steps to prevent a recurrence of his misconduct. He has seen a counselor to address his issues, and has indicated that he will retain a financial manager and escrow money for taxes if he is reinstated. More generally, he has testified to the shame and embarrassment that his conviction and disbarment caused him and his family, and has vowed that he will not disgrace himself and his family again. Several witnesses testified that Petitioner is remorseful and motivated to prove to himself and others that he is a good lawyer. The Committee believes that Petitioner has met his burden of proving this prong of the Roundtree factors and that there is little likelihood that he will engage in similar wrongful conduct in the future. 15

21 4. Present Character Petitioner testified with sincerity and conviction that he is not the same person as the one who evaded income taxes several years ago. Based on his testimony, it appears that, following his conviction, Petitioner engaged in a lengthy period of serious reflection and self-examination concerning his conduct and the effect it had on himself and people around him. He greatly harmed his reputation as a lawyer and lost his self-respect and dignity when he was convicted. Moreover, he hurt his daughter and his parents, people whom he loved and cared for and who were proud of his accomplishments. Tr. at Petitioner had trouble lifting himself up at first, and turned to a trauma counselor to help him pick up the pieces and move forward. Nevertheless, Petitioner loved the law and was willing to work for several years as a paralegal in order to obtain income, keep current on the law, do what he enjoyed, and prepare for the day when he might return as a practicing attorney. Petitioner and his character witnesses testified credibly as to Petitioner s remorse for his past conduct. There was no evidence presented to suggest that Petitioner s present character is such that there should be concern that he will engage in misconduct again. Accordingly, the Committee believes that Petitioner has met his burden of showing that his present character qualifies him to be a member of the District of Columbia Bar. 16

22 5. Present Qualifications Petitioner has been disbarred from the District of Columbia Bar for nearly eight years and thus must present significant evidence of his present competence to practice law. He has met his burden. In support of his qualifications to practice law, Petitioner called three lawyers to the stand who knew Petitioner and who had hired Petitioner to work for them in recent years in a paralegal capacity. Each lawyer spoke highly of Petitioner s legal skills and acumen both before and after his conviction for tax evasion. These attorneys have given Petitioner a variety of tasks to complete as a paralegal, including legal research and writing and interviews of witnesses. Two of the witnesses noted that Petitioner had been of substantial assistance to them in analyzing criminal cases. The witnesses also noted that Petitioner has appeared to keep up with the law and is expanding his knowledge of civil practice. Petitioner appears to be qualified based on the work he has done for these attorneys. See In re McBurney, 714 A.2d 788 (D.C. 1998). Further, Petitioner testified that he has worked for these lawyers and others over the past several years. All of his income since his release from prison has come from his work as a paralegal/investigator. Petitioner also reads the Maryland Daily Record and Supreme Court websites on a regular basis. See In re Fogel, 728 A.2d 668 (D.C. 1999) (evidence that petitioner had continued to read legal periodicals considered in determining his present qualifications). Thus, he has kept up with the law not only through working for attorneys but also through the review of appropriate legal resources. The Committee is satisfied that Petitioner has met his burden of proving that he is qualified to practice law in the District of Columbia. 17

23 E. C:rrnclusbn For the mi~sonset fo~orth above, the Committee believes that Petitioner has met his burdcn of proving. by clear alld con\ i~icing witictlcc. that hc shotild be rcinstared to the Bar or thc District of' Columbia. and the Cammittce rccorn~i~cnds his rcinstsllcmcni. 'I'hc Fctitioner, however. has yet to fully pay restitution owed to thc Intcrnal Revenuc Scrvico, md such restitution must be paid as a condition of his reinsratcmurtt. Aocurdingly. the Commitlee rcctrmrnends that the Petitioner be reinstated under the folfow$ng conditions: 1. On a quarterly basis. he keep thc I3af apprid of his discusaio~w with thc XRS cor~cerning the Oikr in Compromise: 2 That he provide the Bar with n copy of the Offcr in Con~prornise as swan as lie reaclm n linnl agret*mct.rt with thc IRS; md 3. That hc omport with the payment schedule agreed to by and b~~wc'en hi~nsdf and tho IRS and that he providu the Bar, on an annual hasis, with prod of his payments until s~ich time as he hm paid the re~titu~ion in full. J..B-&s Laurie R. Dsrvis. ttsquirc Chair Sxan~.aLifier -*..- (LBD),,..,,,, ,...- ",.--.--,,,-.,--..--,- Ms. Susan L. Ruiler MAY 1 1 ;KXJG