No Fine Wine

The District of Columbia Board on Professional Responsibility has recommended a six-month suspension with reinstatement conditioned on a showing of fitness based on a number of Rule violations

Respondent was sued in the District of Columbia Superior Court because he had agreed to be a guarantor for funds lent to co-defendants who defaulted on the loans. After two years of litigation, the court granted a motion for summary judgment against Respondent and entered a judgment against him in the amount of $1,158,701.40. Thereafter, Respondent agreed to a settlement with the plaintiffs wherein he promised to pay $10,000 to the plaintiffs, instead of the judgment. Over the next six years, Respondent engaged in obstructionist behaviors in an effort to avoid payment of the settlement, which resulted in his incarceration for civil contempt. In doing so, he spurned his obligations as an officer of the court and repeatedly violated the disciplinary rules.

Regrettably (and all too common), this matter was opened for investigation in early 2013 and charges were filed in 2015.

The Ad Hoc Hearing Committee filed its 263 page report six years later.

The Specification of Charges was filed by the Office of Bar Counsel. The District of Columbia
Court of Appeals changed the title of Bar Counsel to Disciplinary Counsel, effective December
19, 2015. We will use the current title in this report.

The BPR found a Rule 3.1 (frivolous claim) violation when Respondent sought to vacate a settlement he had reached by claiming fraud

The law on this issue was clear and unambiguous. By entering into the settlement agreement with full knowledge of his fraud claims, Respondent’s claims related thereto were extinguished. See HC Rpt. at 155-56.7 He cites no authority in support of his position to the contrary. His argument could not have been based upon even a faint hope of success on the legal merits. Accordingly, he violated Rule 3.1.

Rule 3.3

“A play cannot be understood on the basis of some of its scenes, but only on its entire performance.” Ukwu, 926 A.2d at 1116 (quoting Andrews v. Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990)). As the Court of Appeals instructed in that case, “[i]ntent must ordinarily be established by circumstantial evidence, and in assessing intent, the court must consider the entire context. ‘[I]t is generally in the interests of justice that the trier of fact “consider the entire mosaic.’” 926 A.2d at 1116 (internal citations omitted).

In assessing the complete mosaic in this case, we find that there is substantial record evidence supporting the Hearing Committee’s determination that Respondent never intended to pay the outstanding sanctions with the refinancing proceeds. The sum total of Respondent’s conduct in this matter was deeply problematic. Even after being warned on more than one occasion that he would be held in contempt if he failed to pay the sanctions, Respondent persisted in ignoring the court’s admonition.

During his incarceration, he continued to drag his feet in repaying the sanctions. And, despite the fact that his wife removed the lion’s share of the refinancing funds from the bank account, there is no dispute that he could have used the remaining funds to pay the outstanding sanctions. He did not. Nor does he even recall raising the possibility of doing so with his wife. See FF 332. Though Respondent’s wife may have believed that Respondent intended to pay the sanctions with the proceeds of the refinancing, we assign her testimony little weight because Respondent’s own behavior demonstrates otherwise. For these reasons, we find that Respondent knowingly made a false statement to the court and, in doing so, violated Rule 3.3(a)(1).

The BPR sustained other violations including Rule 8.4(d)

Respondent’s frivolous motions burdened the opposing parties, as well as the court. He delayed and prolonged the proceedings, even after the matter had been settled. He refused to comply with the court’s orders, including those awarding sanctions to the parties who were forced to incur legal expenses to oppose his repeated frivolous filings. Moreover, his failures to comply with the court’s orders are expressly contemplated by the Rule.

Sanction

Here, as the Committee discussed, (i) Respondent’s misconduct was serious, wide-ranging, and pervasive; (ii) he failed to recognize the seriousness of his actions; (iii) he has done nothing to remedy his past wrongs or prevent future ones; and (iv) his present character and competence to practice law are called into question by the very nature of the misconduct in this matter.

Interestingly, some of the violations found involve the same rules at issue in In re Giuliani. (Mike Frisch)