Outside The Garden

The District of Columbia Court of Appeals adopted the recommendation of its Board on Professional Responsibility and suspended a former hearing committee chair for two years with fitness. 

The disciplinary matter before us stems from what we had occasion five years ago to style “the long and tortuous probate administration of Arnold Lindsey‟s estate.” In re Estate of Lindsey, No. 09-PR-1201, Mem. Op. & J. at 1 (D.C. May 29, 2013). After over nine years of litigation, the Superior Court in August 2009 removed respondent as the estate‟s personal representative, a position to which he had been appointed in August 2000. Respondent appealed from his removal and the simultaneous requirement that he reimburse the estate for $51,312.32 in lost interest because of his failure to diligently collect and distribute proceeds owed to the estate from the settlement of wrongful death and survival actions. In affirming the trial court‟s action, this court found “no grounds . . . for disturbing either the removal order or the order directing reimbursement.” Id. We explained: “[Mr. Speights] offers no serious challenge to Judge [Rhonda] Reid Winston‟s well-substantiated conclusion that his repeated non-compliance wit” the [Superior] Court‟s Orders [requiring distribution of assets and related filing of accounts] and the attendant delays caused by [his non-compliance] prolonged the administration of [the] estate and . . . caused at least one of the decedent‟s heirs and his widow . . . to await that to which they were entitled,‟ and that in general he had” failed to perform material duties of his office.‟” Id…

The Board [on Professional Responsibility], in concluding that substantial evidence in the record supported these findings, unanimously agreed with the Hearing Committee that respondent had “failed to make even the slightest effort to collect the amounts due to the [e]state (even failing to negotiate checks sent to [his] law firm), failed to distribute the assets (even when ordered by the court to do so), and multiplied and prolonged the proceedings, ultimately costing the [e]state over $50,000 in interest.”

Our coverage of the BPR report is linked here. 

The court rejected the assertion that this was a non-disciplinary “garden variety” fiduciary relationship

a lawyer in this jurisdiction who serves as the court appointed personal representative of an estate is held to the same ethical standards as a lawyer representing a client…

Respondent, in short, was not engaged in “an ordinary, garden-variety common law fiduciary relationship” to the Lindsay estate, In re Confidential, 664 A.2d at 367, but held duties also “to the court itself” by virtue of his appointment as a member of the Bar. Id. He was thus answerable to the disciplinary system for his conduct.

Attacks on the proofs likewise were rejected.

As to his hearing testimony

We reject, as well, respondent‟s claim that it was improper for the Hearing Committee, and later the Board, to evaluate the truthfulness of the testimony he gave at the hearing and consider what the Committee found were false statements as an aggravating factor in deciding what sanction to recommend. This is not, as respondent suggests, a case of “amend[ing]” the disciplinary charges based on “the testimony of the accused.” The relevance to proper sanction of “false testimony before the Hearing Committee,” In re Cleaver-Bascombe, 892 A.2d 396, 412 (D.C. 2006), has long been recognized, see In re Kanu, 5 A.3d 1, 15, 17 (D.C. 2010); In re Goffe, 641 A.2d 458, 464-66 (D.C. 1994), and only clairvoyance would enable Disciplinary Counsel to charge such conduct in a way “known [to the respondent] before the proceedings commence.”

Editor’s note: I always appreciate it when the court cites In re Goffe for some proposition related to sanctioning lawyers for serious dishonesty. I tried half the case (the parking space  case) and soon-to-retire Betsy Herman tried the other half (the tax case). Goffe was defended in the hearings by the estimable Robert Litt. I argued the appeals to the Board and Court. 

It is the first case where an attorney was disbarred for serious dishonesty (no conviction) without prior discipline.

The fact that no case previously has imposed a sanction greater than one year for attorney dishonesty does not mean that such a period of suspension, even when coupled with a requirement of fitness, is any sort of tacit outer limit. Rather, it simply evidences that no such example of attorney dishonesty of the magnitude of that demonstrated here has previously been presented to this court.

I fought the view that such a result was impossible which held sway over the various iterations of the Board throughout my tenure as a bar prosecutor. 

The day Goffe came out was one of my best days at Bar Counsel. Indeed, the best part of the job in my day was prevailing over some pro-attorney, anti-public board action or recommendation. 

The court here found that the proposed sanction within the appropriate range for the misconduct.

Altogether, then, we conclude that the Board‟s recommended sanction is consistent with our prior decisions concerning similar conduct and not otherwise unwarranted. D.C. Bar R. XI, § 9 (h)(1). Respondent asserts, and we have no reason at all to question, that for many years he engaged in the honorable, unblemished practice of law in this jurisdiction. But the pattern of conduct leading to his removal as personal representative in this case, together with his recent prior discipline and proven lack of candor in two disciplinary proceedings, persuades us that the sanction recommended by the Board is the correct one.

Associate Judges Thompson and McLeese and Senior Judge Farrell participated in the per curiam decision. (Mike Frisch)