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01/17/91 BARRY LENOIR RESPONDENT. A MEMBER BAR

January 17, 1991

IN RE: BARRY LENOIR, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS


On Report and Recommendation of the Board on Professional Responsibility

Rogers, Chief Judge, Ferren and Belson, Associate Judges.

The opinion of the court was delivered by: Per Curiam

This matter is before us for our consideration of the Report and Recommendation of the Board on Professional Responsibility concerning respondent Barry Lenoir. Lenoir has not contested the Board's recommendation to this court that he be suspended from practice for eighteen months and required to show fitness for practice before reinstatement.

The Board found that Lenoir violated seven separate disciplinary rules involving three different clients, Mrs. Alberta Pryor, Ms. Sarah Holley, and Mr. Maryland Banner: DR 6-101(A)(3) (neglect) (Pryor, Holley, Banner); DR 9-103 (B)(2) (failure to secure client's property) (Pryor); DR 1-102 (A)(4) (dishonesty) (Holley, Banner); DR 7-101 (A)(1) (intentional failure to pursue a client's objectives) (Holley); DR 7-101 (A)(2) (intentional failure to carry out a contract of employment) (Holley); DR 1-102 (A)(5) (conduct prejudicial to the administration of Justice by failing to cooperate with Bar Counsel) (Holley, Banner); and DR 7-102 (A)(5) (knowingly making a false statement) (Banner). *fn1 The Board recommends that Lenoir be suspended from the practice of law for a period of eighteen months and that prior to reinstatement he prove fitness to practice. We accept and adopt the Board's report and recommendation, which we append to this opinion.

We have reviewed the Board's findings of fact and conclude that they are supported by substantial evidence of record. D.C. Bar R. XI, § 9(g); see also In re Buckley, 535 A.2d 863, 865-66 (D.C. 1987); In re Alexander, 466 A.2d 447, 448 (D.C. 1983), cert. denied, 466 U.S. 904, 80 L. Ed. 2d 154, 104 S. Ct. 1680 (1984). In imposing discipline, this court makes the ultimate determination of sanction but gives considerable deference to the Board's recommendation. In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc). Thus, we must assess Lenoir's violations in light of the following relevant factors: the nature of the violation, aggravating and mitigating circumstances, the absence or presence of prior disciplinary sanctions, the moral fitness of the attorney, and the need to protect the legal profession, the courts, and the public. Id. at 924 (citing In re Haupt, 422 A.2d 768, 771 (D.C. 1980) (Haupt I) and In re Smith, 403 A.2d 296, 303 (D.C. 1979)).

In this instance, Lenoir's misconduct is serious, arising from two intentional violations and repeated dishonesty while representing Sarah Holley and Maryland Banner. See In re Knox, 441 A.2d 265, 268 (D.C. 1982). Although Lenoir does not have a prior record for disciplinary violations, his misconduct during a four year period severely prejudiced his three clients and caused them great inconvenience.

We point out in particular the nonadjudication of Sarah Holley's claim because Lenoir allowed the statute of limitations period to expire and the ineffective representation of Maryland Banner. Lenoir's conduct is further aggravated by his lack of remorse and the number of violations he committed. Accordingly, we adopt the Board's recommended sanction, finding it to be consistent with discipline imposed in other cases for comparable conduct. In re Alexander, 496 A.2d 244, 246-47 (D.C. 1985) (Alexander I) (respondent suspended for two years for five instances of conduct prejudicial to the administration of Justice, one instance of deceit and misrepresentation, three instances of neglect, two instances of failure to obtain a client's lawful objective, and for misstating to court opposing counsel's position regarding continuance); In re Bond, No. 84-1774 (March 25, 1985) (respondent suspended for eighteen months as a result of misconduct occurring during a two year period arising from the representation of one client involving misrepresentation, conduct prejudicial to the administration of Justice, neglect of a legal matter, intentionally failing to seek the lawful objectives of client, intentionally failing to carry out a contract of employment, and intentionally prejudicing or damaging client during course of professional relationship); In re Sheehy, 454 A.2d 1360, 1361 (D.C. 1983) (en banc) two year suspension warranted for respondent's neglecting a legal matter and making serious misrepresentations to client and Bar Counsel); In re Haupt, supra, 422 A.2d at 768 (respondent suspended for three years for neglect, deceit, misrepresentation to client, and intentional failure to seek client's objectives); and In re Smith, supra, 403 A.2d at 296 (respondent suspended for eighteen months for neglect in two cases and misrepresentation to a client concerning a case).

It is therefore ORDERED that respondent, Barry Lenoir, is suspended from the practice of law in the District of Columbia for a period of eighteen months, effective thirty days from the date of this opinion, and that he be required to show fitness for practice prior to reinstatement.

So ordered.

DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL RESPONSIBILITY

BAR DOCKET NOS. 53-86

284-86

51-87

37-88

IN THE MATTER OF:

BARRY LENOIR, RESPONDENT.

REPORT AND RECOMMENDATION OF

THE BOARD ON PROFESSIONAL RESPONSIBILITY

This Report concerns charges presented before two separate Hearing Committees. Hearing Committee No. 9 heard Bar Docket Nos. 53-86, 284-86 and 51-87, in which Respondent Barry Lenoir was charged with misconduct arising from three different client matters. The alleged disciplinary violations consist of neglect, misrepresentation, conduct prejudicial to the administration of Justice, failure to segregate client property, failure to fulfill a contract of employment, and failure to seek the lawful objectives of a client. Hearing Committee No. 9 found several violations of disciplinary rules, and recommended a sixty-day suspension.

Hearing Committee No. 7 heard Bar Docket No. 37-88, in which neglect, intentional misconduct, dishonesty, misrepresentation and conduct prejudicial to the administration of Justice were charged. The Hearing Committee found several violations, recommended dismissals as to some changes, and recommended a suspension of six months with a requirement that Respondent show fitness in order to resume practice.

We concur in most of the recommendations of the two Hearing Committees, but reach a different result as to several charges. Regarding sanction, we recommend a suspension of 18 months, with a requirement to prove fitness to resume practice.

I. MATTERS BEFORE HEARING COMMITTEE NO. 9

Procedural Background

We have before us a second Report from Hearing Committee No. 9 concerning Respondent. The first Report, following a hearing in November 1987, recommended a sixty-day suspension based on violations of several disciplinary rules. In that proceeding, Respondent failed to file an answer to the Petition, and Bar Counsel moved under Board Rule 7.6 for permission to proceed with an ex parte presentation of proof.1a Respondent was present at the hearing and opposed the motion, but it was granted by the Hearing Committee. The Hearing Committee interpreted Rule 7.6 to prohibit Respondent from cross-examining Bar Counsel's witnesses and from presenting any testimony in his defense at the hearing, and conducted the hearing accordingly.

Respondent objected to this procedure, both before the Hearing Committee and before us, on the grounds that his inability fully to participate in the proceeding deprived him of due process rights. In an Order dated November 22, 1988, we concluded that the Rule 7.6 procedures adopted by the Hearing Committee were improper, and remanded the matter to the Hearing Committee with specific instructions to permit Respondent to cross-examine Bar Counsel's witnesses and to present testimony himself. Although we did not agree with Respondent's Constitution-based objections, we did conclude as a matter of policy that even a respondent who fails to file an answer should be given an opportunity, if he is present at the hearing, to cross-examine Bar Counsel's witnesses and to testify. (Since our November 22, 1988 Order in this matter, Board Rule 7.6 has been amended specifically to establish such hearing procedures for a defaulting respondent who is nevertheless present at the hearing.)

In response to our remand order, the Hearing Committee conducted a new hearing, at which Respondent was given an opportunity to cross-examine witnesses, to testify, and to present oral and written argument. The Hearing Committee issued a new Report, reaching the same Conclusions as in its initial Report (except for the inclusion of a recommendation of a violation of DR 1-102(A)(4) on a matter overlooked in the initial Report), and again recommended a 60-day suspension. The only exception filed to the Hearing Committee report was that of Bar Counsel, urging a sanction greater than a 60-day suspension.

We review below the Hearing Committee's recommendations on the three matters giving rise to the alleged disciplinary violations.

1. Crawford

In November 1981, Respondent was retained by Mrs. Bridget Crawford for the purpose of obtaining a divorce. At the time, Respondent quoted Mrs. Crawford a fee of $250 for an uncontested divorce, and $500 for a contested one.

After being retained to obtain the divorce, Respondent represented Mrs. Crawford in foreclosure proceedings against property which she owned with her husband, and in November 1983 he forwarded to her a sum of money representing the net proceeds from a foreclosure sale of the property. In the accompanying correspondence, Respondent quoted Mrs. Crawford a revised fee of $750 for his services, which included those for assistance in the foreclosure, for a separation agreement, and for a divorce. He asked that Mrs. Crawford pay him $600 on account, which she did.

Nothing further happened in the Crawford divorce matter. Late in 1985, Mrs. Crawford prepared a complaint which was eventually forwarded to Bar Counsel, alleging that she had paid Respondent $750 for a divorce, and that he did not perform the requested services. Respondent replied to a written inquiry from Bar Counsel by stating that he had performed services for Mrs. Crawford, that he believed that his fee was earned despite the fact that no divorce was obtained, but that he would make a partial refund to Mrs. Crawford in order to resolve the dispute. In view of a written acknowledgment by Mrs. Crawford that Respondent had earned his fee, and Respondent's offer to make a partial refund, in July, 1986 Bar Counsel dismissed its investigation. Although not made a condition of the dismissal, Bar Counsel's notice of dismissal to Mrs. Crawford notes Respondent's offer of a partial refund of his fee.

In September 1986, Bar Counsel learned from Mrs. Crawford that Respondent had not made the promised refund, and also learned that the amount she had paid to Respondent was $600, rather than the $750 that she stated initially. On September 29, 1986, Bar Counsel wrote to Respondent inquiring about the status of the refund. No response was received to this letter. However, at a meeting with Bar Counsel on January 12, 1987, called to discuss why the refund had not been made, Respondent told Bar Counsel that the refund had been given. Bar Counsel asked Respondent to confirm this in writing, which never occurred.

No refund was, in fact, ever made by Respondent. At the disciplinary hearing, Respondent testified that when he reviewed his files (after having made the offer of a refund), he realized that he had been paid only $600, not $750, and therefore felt that the refund was no longer justified.

Bar Counsel charged Respondent with conduct prejudicial to the administration of Justice for his failure to cooperate with Bar Counsel's investigation of the Crawford matter, and because of his failure to honor the commitment made to Bar Counsel to make a refund to Mrs. Crawford. Bar Counsel also charged Respondent with deceit and misrepresentation, in violation of DR 1-102(A)(4), for his misstatement to Bar Counsel in January 1987 that a partial refund had been made.

The Hearing Committee recommended that all charges in the Crawford matter be dismissed for failure of clear and convincing proof, and we agree. With regard to the charge based on failure to cooperate with Bar Counsel, the Hearing Committee notes that there was conflicting evidence concerning whether certain of Bar Counsel's correspondence was ever delivered to Respondent, and whether Respondent had been keeping Bar Counsel informed of his actions following the original dismissal. Although Respondent did fail to respond to Bar Counsel's letters, there is evidence of telephone contact between the two and of a meeting to discuss the case. The ...


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