The 1%: “Inflated Self-Esteem, Intellectual Arrogance And Anger”
A prominent member of the probate bar should be disbarred for misappropriation, per a report and recommendation of the District of Columbia Board on Professional Responsibility
Respondent Evan J. Krame served as the court-appointed trustee of Special Needs Trusts. A Special Needs Trust holds the assets of a disabled person without jeopardizing his or her receipt of governmental health and welfare benefits. Each of the three trusts at issue in this case was funded by a large civil settlement obtained on behalf of a severely disabled minor: Vernice Seay (“Seay trust”), De’Shawn Mecco Brown (“Brown trust”), and Dion Baker (“Baker trust”).
This matter arose primarily out of Respondent’s dogged claim to Probate Division judges that his compensation as trustee should be set annually as 1% of a trust’s assets, and that he not be required to account for the time he spent acting as trustee. Respondent also sought to charge his trust clients for a litigation cost and the time he spent pursuing his compensation argument. The Probate Division and the Court of Appeals uniformly rejected his claims. See In re D.M.B., 979 A.2d 15 (D.C. 2009).
The BPR sustained numerous ethics violations
For years, Respondent insistently sought to persuade the Probate Division to allow him annually to pay himself fees amounting to 1% of the value of each Special Needs Trust he administered, regardless of the time he spent working as a trustee. Probate judges and the Court of Appeals uniformly rejected his argument, and ordered him to document his activities so they could assess the reasonableness of his charges.
Respondent, however, refused to accept the legitimacy of those judicial decisions and insisted that he was entitled to a percentage fee: “I was outraged, and I was in my mind serving the justice that I thought I was being denied.” Tr. 2283. The Hearing Committee found that his “inflated self-esteem, intellectual arrogance and anger over” the courts’ rulings “ – manifested several times in his testimony – clouded his judgment” and led him to violate multiple ethical Rules. HC Rpt. at 137. We agree.
There was dishonesty and misappropriation.
We agree with Disciplinary Counsel that Respondent’s justifications are not credible. The Hearing Committee unanimously found that the amounts of the time entries about which Respondent testified were “baselessly inflat[ed]” (HC Rpt. at 137) and that Respondent’s alterations to the four entries were unwarranted, unsupported and, ultimately, dishonest: “We are convinced by clear and convincing evidence that the September 7, 2007 entry in the Brown Trust Pre-Bill (FF 152), the March 25, 2008 entry in the Brown Trust Pre-Bill (FF 153), the November 29, 2006 entry in the Baker Trust Pre-Bill (FF 158), and the February 13, 2008 entry in the Baker Trust Pre-Bill (FF 163) are not supported by available documentation, other information, and/or Respondent’s experience.” Id. at 136-37 (final emphasis added). Respondent does not dispute that his alterations were dishonest.
And
Our de novo review of the dishonest time entry issue inexorably leads us to conclude not only that Respondent’s editorial revisions constituted an intentional end-run around the Probate Division and Court of Appeals, but that his testimony seeking to justify that conduct was intentionally false.
Notably, Respondent had served as an expert witness in bar prosecutions arising from probate matters.
Sanction
we find the misconduct here sufficiently serious so as to recommend a sanction greater than that recommended by Disciplinary Counsel before the Board (“at least two years suspension”) although it is the same as that recommended by Disciplinary Counsel to the Hearing Committee. See ODC PostHearing Br. at 86-87 (“For this flagrant dishonesty alone, Respondent should be disbarred”); see Cleaver-Bascombe I, 892 A.2d at 412 n.14 (noting that the imposition of sanctions greater than that sought by Disciplinary Counsel “should be the exception, not the norm” in our adversarial disciplinary system).
The report in In re Evan J. Krame may be accessed here . (Mike Frisch)