Failures To Disclose And Update In Bar Admission Leads To Proposed Severe Sanction
District of Columbia Hearing Committee No. Six has issued a report in a case that began in 2009 and was heard in 2015.
This consolidated case arises out of two separate disciplinary matters involving Respondent Scott Adkins. The first matter (Bar Docket No. 2009-D362) arises out of Respondent’s alleged misrepresentation on his 2006 D.C. Bar application and the 2008 Supplemental Questionnaire he completed prior to taking the oath of admission. Disciplinary Counsel alleged that Respondent failed to fully disclose and/or failed to update information relating to his academic discipline, civil actions in which he was involved, his criminal history, disciplinary history, employment history and past due debts. The second matter (Bar Docket No. 2013- D117) is a three-count Specification arising out of Respondent’s alleged hit and-run while driving under the influence in Florida in 2009. Respondent was charged by the Florida authorities with multiple violations of Florida law and pleaded guilty to reckless driving (in violation of Fla. Stat. §316.1925(1)) and failing to stop and remain at the scene of an accident (in violation of Fla. Stat. §316.027(2)(a)). In particular, Disciplinary Counsel alleges that, during the disciplinary investigation, Respondent sent an email to Disciplinary Counsel that contained misrepresentations about the incident.
The attorney is also admitted in Delaware and California and has (or had) an application for admission in Florida.
The hearing
Hearing Committee Six (Andrea L. Berlowe, Esquire, Chair; Sara K. Blumenthal, Public Member; and, Dwaune L. Dupree, Esquire, Attorney Member) held an evidentiary hearing on July 6-8, 2015
Findings
the Hearing Committee finds clear and convincing evidence of violations of Rules 8.1(a), 8.1(b), 8.4(b), 8.4(c), and 8.4(d) charged by Disciplinary Counsel. Upon examination of aggravating and mitigating factors, however, the Hearing Committee recommends that Respondent be suspended for three years with a fitness requirement.
Disciplinary Counsel sought disbarment.
His answer to the question of termination from prior employment
Respondent correctly responded “yes” to Question 8, and stated that he had been terminated from his position at Lerach Coughlin in March 2005. In doing so, Respondent stated that a “profound difference of philosophies led to [a] rift, and ultimately, [his] termination” from that position. Id. However, in his June 2009 application for admission to the Florida Bar (the “FLA Application,” discussed in ¶ 70, below), Respondent stated that he was “terminated after missing the second day of the February 2005 Bar Exam . . ..” Additionally, before being admitted to the D.C. Bar, Respondent did not timely update his D.C. Application to reflect that he had been terminated or suspended from three additional employers.
As to complaints against him
At the time he submitted his D.C. Application, Respondent correctly answered “No.” Id. But, while his D.C. Application was pending, he failed to update the COA regarding an investigation by the DE ODC into his November 2006 arrest for the criminal misdemeanor traffic offenses of Driving While Under the Influence (DUI) and Reckless Driving (the “First DUI Incident”).
He failed to disclose five civil actions and a number of debts.
He was admitted after a series of supplemental disclosures
on April 14, 2008, Respondent took the oath of admission to become a member of the D.C. Bar and submitted his Supplemental Questionnaire to the COA without disclosing his criminal misdemeanor convictions of DUI and reckless driving.
He then sought admission in Florida.
As part of D.C. admission process one is obligated to attend an all-day lecture event
In early August 2009, Respondent attended a mandatory Disciplinary Counsel lecture on legal ethics in Washington, D.C. Respondent testified at the hearing that, during the lecture, he realized he had failed to report the First DUI Incident and the ensuing [Delaware Office of Disciplinary Counsel hereinafter] DE ODC investigation to the [District of Columbia Committee on Admissions hereinafter] COA, as required.
Thus, on August 14, 2009, Respondent wrote a letter to Disciplinary Counsel in which he reported his failure to disclose the First DUI Incident and the ensuing DE ODC investigation (the “First Self-Report”). Respondent also informed the Delaware Bar of his First DUI Incident around that time.
Glad those talks are good for something but
On the evening of December 5, 2009, Respondent “relapsed” and stopped at a bar named Jester’s near Pompano Beach, Florida. (“self-medicated”). Respondent testified that he was drinking at Jester’s for “at least like two hours, maybe more.” (describing Jester’s as “the gin mill I was at”)…
While driving his car, a white 2006 Chrysler 300 sedan, Respondent rear-ended another vehicle, a black Mercedes.
As a result
On June 17, 2011, Respondent pleaded no contest to, and was adjudicated guilty of, reckless driving and failing to stop and remain at the scene of an accident.
In Delaware
On June 5, 2013, after conducting an investigation into the Second DUI Incident, DE ODC determined that there was probable cause that Respondent violated certain Delaware Lawyers’ Rules of Professional Conduct. Instead of filing a petition with the Delaware Board of Professional Responsibility, however, DE ODC recommended that Respondent accept the sanction of a private admonition and probation with conditions, including random urinalysis tests (the “2013 Delaware Sanction”).
He made false statements to D.C. ODC in reporting on the incident
Respondent’s e-mail falsely stated that, prior to the collision, there “were no cars to my front,” but then “all of a sudden, in my travel lane, a black Mercedes that was stopped in the travel lane with no lights on hit her brakes.” Respondent’s representations were inconsistent with the accident report, and ignored the significant impairment he experienced at the time from his consumption of alcohol and his failure to wear eyeglasses or corrective lenses when the collision occurred.
Respondent also falsely represented to Disciplinary Counsel that, after the collision, he was assaulted by a young man who threw an object at his car, causing significant injury to Respondent and putting him in fear for his safety…
Respondent also falsely represented to Disciplinary Counsel that he “chose” to leave the scene of the collision in order to “go to the nearest police station,” to report the assault purportedly committed by the passenger of the black Mercedes, but he was pulled over by the police on his “way to the nearest police station.” Respondent repeated these statements in the Delaware proceeding, (“That’s why I left the scene”), and in his testimony before the Hearing Committee.
To top it off
In sum, Respondent’s testimony surrounding the Second DUI Incident was not credible and, ultimately, whether he truthfully recounted the facts or not is irrelevant to the question of whether he failed to disclose the incident to the COA prior to taking the oath of admission, as required by the Supplemental Questionnaire and his continuing duty to supplement his D.C. Application. His testimony about the incident also never revealed, and is not relevant to, whether, following admission, he violated his duty to disclose the Second DUI Incident to the D.C. Court of Appeals, as required by D.C. Bar R. XI, §10.
The committee found that the misconduct was knowing, rejecting his claim of negligence.
As to delay
Respondent argues he was unable to submit favorable evidence and testimony regarding his arrest and conviction for the Second DUI Incident that he might have submitted had Disciplinary Counsel moved with greater alacrity to bring charges against him stemming from that incident. Specifically, Respondent claims that his now-deceased lawyer had evidence supporting his version of events, but, due to Disciplinary Counsel’s multi-year delay in bringing charges, that evidence “disappeared when [his attorney] passed away.” Respondent also asserts that his now-deceased mother could have supported his version of events because, though she was not present during the collision, she saw, among other things, the damage to his car afterwards. Considering all the evidence presented and the applicable law, the Hearing Committee rejects Respondent’s allegations.
As to sanction
Here, Respondent’s misconduct entails far more than omitting minor facts from his D.C. Application. Respondent’s omissions include failing to disclose: civil actions to which he was a party, including those in which he was the plaintiff; a disciplinary investigation by the Delaware Bar; several unpaid debts; professional employment from which he was terminated, at least one of which was for false and misleading conduct; and a criminal arrest and conviction. Consequently, his conduct warrants a more serious sanction than merely a brief suspension with a fitness requirement…
Respondent often was argumentative toward Disciplinary Counsel and appeared to have difficulty controlling his temper during the hearing. The Hearing Committee had to intervene when he frequently veered from relevant discussion topics.
Alcoholism did not cause the misconduct according to the committee majority.
Ultimately
we recommend that Respondent be suspended for a period of three years for his pervasive dishonesty in the admissions process and his false testimony before this Hearing Committee. Although it is a close question, we do not find by clear and convincing evidence that Respondent engaged in “flagrant dishonesty” warranting disbarment.
Disciplinary Counsel may well challenge that conclusion on appeal.
Respondent may well look to the delay in issuing this report as an issue and will be disappointed to learn that such delay is all too common.
A concurring opinion of attorney member Dwaune Dupree
I concur in the recommended sanction included in the Recommendation of Hearing Committee Number Six (the “Report”), and write separately for two major reasons. First, I believe that the Report fails to contextualize certain facts relating to Respondent’s behavior, and does not appropriately weigh either Respondent’s addiction or his self reporting as mitigating evidence. Without providing the appropriate context, I am concerned that the Hearing Committee’s recommended sanction appears unduly lenient. Considering the facts in light of the clarifying discussion below, I find that the recommended sanction is not unduly lenient. Second, I write to highlight the important policy implications of this case. While the Board on Professional Responsibility and District of Columbia Court of Appeals ultimately are responsible for making policy decisions, I believe that the District of Columbia should adopt a policy that encourages lawyers to voluntarily report their misconduct…
The record shows that Respondent’s addiction was so serious that, for several years, he could barely hold a job, had severe financial problems, and it resulted in him being arrested for a misdemeanor crime. Based on this, I find it completely credible that Respondent would not be particularly focused on updating various changes to his Bar application, including his failures to disclose additional lawsuits, additional past due debts, and his terminations from three employers. While Respondent clearly had a duty to update his application, I believe that the serious challenges that he faced during that time provide some mitigation of his failure to do so.
The concurrence is worth a read.
In re Scott Adkins can be accessed here.
Citations to record omitted throughout. (Mike Frisch)