False Testimony Requires Suspension
An attorney’s false statement at his disciplinary hearing merits an actual 30 day suspension as proposed by the District of Columbia Board on Professional Responsibility.
The problems began at the outset
On May 10, 2012, Cynthia Coleman-Fields died intestate following surgery. During a May 15, 2012 meeting, Respondent agreed to represent Ms. Coleman-Fields’ husband, Robert Fields, and three of her adult children, Demetrius Davis, Ashley Coleman and April Coleman (collectively “Ms. Coleman-Fields’ children”), and the to-be-formed Estate of Cynthia ColemanFields. Susan Liberman, another lawyer who handled the probate case, participated in part of the meeting by telephone. Respondent did not identify or explain to the family members any potential conflicts of interest arising from this joint representation, other than a vague statement about the distribution agreement he drafted.
Mr. Fields said at the May 15 meeting that he wanted to divide the proceeds of any lawsuit evenly with the children and asked Respondent to prepare an agreement. Although Respondent did not want to draft such a distribution agreement because of the conflicting interests of the family members (i.e., one of his clients (Mr. Fields) would receive less than the fifty-percent share he would receive otherwise, while the others would receive more than they otherwise would) and because he was not familiar with probate law or drafting contracts, Respondent nonetheless prepared a handwritten “distribution agreement” that provided, in part: “We have agreed that the husband and the 4 children will equally divide the net proceeds, regardless of D.C. Probate law.” Only Mr. Fields signed this document.
After Ms. Liberman opened the Estate, with Mr. Fields designated as the Personal Representative, she told Respondent and Mr. Fields that she believed the distribution agreement Respondent had drafted was not binding. Mr. Fields subsequently decided that he did not want to evenly share the proceeds with the children. Respondent did not share with Ms. Coleman-Fields’ children, his other clients, either that the agreement was invalid or Mr. Fields’ decision not to share the proceeds evenly.
At the hearing, Respondent contended that he had intentionally drafted an invalid distribution agreement and that he told his clients that the agreement was invalid. The Hearing Committee found that Respondent’s testimony was dishonest and a “post hoc rationalization” to explain his error in drafting the distribution agreement. Respondent does not contest this finding before the Board, and we agree that Respondent’s testimony was dishonest.
Later in 2012, the relationship between Mr. Fields and his late wife’s children broke down, and Mr. Fields directed Respondent not to communicate with Mr. Davis about the case. Believing that Mr. Fields, as Personal Representative, had the authority to give him this direction, Respondent complied, but made no effort to withdraw from his representation of Mr. Davis and Ms. Coleman-Fields’ other children.
At issue was whether a fully-probated suspension was appropriate in a case involving false hearing testimony. The attorney argued that any suspension can be devastating to a sole practitioner.
As Disciplinary Counsel correctly argues, false testimony to a Hearing Committee is a significant aggravating factor…
Neither the Hearing Committee, nor Respondent in his brief to the Board, have cited a case in which a respondent who testified falsely has received a fully stayed suspension. We have similarly been unable to locate such a case. Instead, cases involving false testimony have resulted in a suspension, and for good reason. As the Court observed in Cleaver-Bascombe, “an attorney who presents false testimony during disciplinary proceedings clearly does not appreciate the impropriety of his or her conduct.” 892 A.2d at 412 (internal citation, quotations and alterations omitted). Thus, “[d]eliberately dishonest testimony receives great weight in sanctioning determinations because a respondent’s ‘truthfulness or mendacity while testifying on his own behalf, almost without exception, [is] probative of his attitudes toward society and prospects of rehabilitation[.]’” In re Chapman, 962 A.2d at 925 (alterations in original) (citation omitted) (Court imposed sixty-day suspension with thirty days stayed in favor of a one-year probation, rather than the stayed suspension recommendation, where the respondent’s testimony to the hearing committee was either not credible or deliberately dishonest); see also In re Avery, 189 A.3d at 721 (Court imposed sixty-day suspension with thirty days stayed in favor of a one-year probation rather than the “stay-in-favor-of probation recommendation” in case involving not credible or false testimony).
In re Michael Wilson can be found at this link. (Mike Frisch)