On Report and Recommendation of the Board of Professional Responsibility.
Before Terry, Steadman and Farrell, Associate Judges.
The opinion of the court was delivered by: Per Curiam
This disciplinary matter is before the court on the recommendation of the Board on Professional Responsibility (the Board) that Respondent be suspended from the practice of law in this jurisdiction for thirty days. In excepting to this recommendation, Bar Counsel contends that Respondent should, in addition, be ordered to make restitution in the amount of $1,435, as recommended by a minority of the Board. Respondent has taken no part in the disciplinary proceedings since his appearance before the Hearing Committee and has never contested Bar Counsel's position that restitution should be part of the sanction. We agree with Bar Counsel and the Board minority that restitution is appropriate under the circumstances of this case.
The facts relevant to the restitution issue may be summarized as follows. *fn1 On November 23, 1985, Ms. Maria del Carmen Cante retained Respondent, Curtis L. Solomon, to represent her in an immigration matter involving her niece and brother. Ms. Cante paid Respondent $1,600 in legal fees, plus a $35 filing fee, for his services. Dissatisfied with Respondent's lack of progress and unable to reach him by telephone, Ms. Cante filed a complaint against Respondent with the Office of Bar Counsel in January of 1987.
In May of 1987, Respondent agreed to reimburse Ms. Cante for the fees that she had paid him; he notified Bar Counsel of this agreement in a letter her by August 31, 1987. Respondent failed to refund the money at that time, but then promised Bar Counsel that he would repay Ms. Cante in $200 monthly installments. In part because of these representations, and in part because Bar Counsel had no evidence that Respondent had violated any Disciplinary Rules, *fn2 Bar Counsel informed Respondent on December 29, 1987 that it was dismissing Ms. Cante's complaint. *fn3
Respondent sent Ms. Cante one check in the amount of $200 in January 1988, but made no further payments. He subsequently petitioned for bankruptcy, but did not notify Bar Counsel of this petition or of his failure to fulfill his promise to repay Ms. Cante. *fn4 When Ms. Cante informed Bar Counsel of Respondent's failure to make any payments beyond the initial payment of $200, Bar Counsel reinstated his investigation. On March 22, 1989, Bar Counsel served a petition on Respondent, charging him, inter alia, with violation of DR 1-102(A)(5) for his failure to fulfill his promises to Bar Counsel. Both the Hearing Committee and the Board found that this conduct constituted conduct prejudicial to the administration of Justice within the meaning of DR 1-102(A)(5). As a sanction for this and the other violations, the Board determined to recommend a thirty-day suspension, but concluded, with three members Dissenting, that an order of restitution would not be appropriate. Bar Counsel, who had recommended a sanction of restitution in his post-hearing brief to the Hearing Committee and in his brief before the Board, filed a timely exception.
Our starting point is the simple proposition that Respondent repeatedly assured Bar Counsel that he would repay Ms. Cante, and that the sanction of restitution merely would require Respondent to fulfill his promises. In accepting the Board's recommendation regarding sanctions for failures to fulfill promises made to the Board, we have previously emphasized the importance of honoring commitments made to Bar Counsel. See In re Harmon, No. M-79-81 (D.C. Dec. 14, 1981) (three-month suspension for violation of DR 1-102(A)(5) and other disciplinary rules stemming from failure to carry out promises to Bar Counsel to refund fee or perform legal services for client); see also In re Newsome, No. 91-77 (Bd. Prof. Resp. June 12, 1979) (public reprimand for failure to keep a promise to Bar Counsel to remit fees to client). *fn5 As the Board noted in Newsome, "the issue is simply whether lawyers are ethically bound to honor their commitments under these circumstances. We believe they are." The importance of honoring commitments made to Bar Counsel is especially important where, as here, Respondent made the promise as an integral part of the conduct of a disciplinary inquiry, on which not only Bar Counsel but the complainant may well have relied. *fn6
In its brief, the Board does not question the importance of honoring commitments made to Bar Counsel. Rather, as we understand it, the concern of the Board majority is that restitution is inappropriate because Bar Counsel's charges did not give Respondent sufficient notice that the nature and extent of his services were at issue in this case.
We cannot agree that restitution cannot fairly be imposed on the record here. To begin with, the petition instituting formal disciplinary proceedings clearly set forth as one of its bases Respondent's explicit promise to refund the legal fee received from complainant and his failure to do so. Respondent's answer did not contest this liability, but rather asserted an inability to pay. *fn7 The very nature of the charge -- that respondent had failed to make restitution as promised -- placed respondent on notice that restitution, and therefore the amount of restitution, was a possible sanction. It is undisputed that Respondent breached a repeated promise to Bar Counsel that he would remit to Ms. Cante a specific dollar amount. Imposing a sanction of restitution in that precise amount, thereby requiring Respondent to honor his commitment to Bar Counsel and Ms. Cante, could come as no surprise to Respondent.
Even if Respondent somehow was not on notice at his hearing that the nature and extent of his services were at issue, Bar Counsel's post-hearing brief, which recommended restitution as a sanction, gave him such notice. We think it of controlling significance that Respondent did not respond to Bar Counsel's brief, nor has he argued at any other stage of these proceedings that restitution is not an appropriate sanction. Nor indeed has he argued that he was in fact in any way prejudiced by any inadequacy of notice in the presentation of proof at the hearing itself. An attorney who chooses not to participate in a disciplinary proceeding as it progresses through the system designed to protect that attorney's rights cannot reasonably expect that a presumption of prejudice will operate in the attorney's favor. *fn8 Accordingly, it is
ORDERED that Respondent, CURTIS L. SOLOMON, be and he hereby is suspended from the practice of law in the District of Columbia for thirty days, effective thirty days from the date of this opinion, with reinstatement thereafter subject to the condition that Respondent submit to Bar Counsel evidence of restitution in full to complainant Maria del Carmen Cante of the sum of $1,435.
DISTRICT OF COLUMBIA COURT OF APPEALS
BOARD ON PROFESSIONAL RESPONSIBILITY
Bar Docket Nos: 31-87; 89-88
REPORT AND RECOMMENDATION OF THE
BOARD ON PROFESSIONAL RESPONSIBILITY
This matter is before the Board on Professional Responsibility for review of the Report of Hearing Committee Number Five, which found that Respondent violated DR 1-102(A)(5) (conduct prejudicial to the administration of Justice) in regard to one client (Ms. Cante), and DR 2-110(A)(2) (withdrawing from employment without delivering to client all papers and property to which client was entitled) in regard to two clients (Ms. Cante and Mr. Mezgebe). The Board agrees with the Hearing Committed that Respondent violated the foregoing disciplinary rules. The Committee did not reach the question whether Respondent also violated DR 9-103(B)(4) (failing to promptly deliver to client the properties in possession of lawyer which client is entitled to receive). The Committee found it unnecessary to reach that question because it found violations of DR 2-110(A)(2) based on the same conduct and concluded that the finding of violations of DR 9-103(B)(4) would not affect its recommendation as to sanction. The Board has concluded that DR 9-103(B)(4) was also violated by reason of the same conduct which the Committee found to constitute violations of DR 2-110(A)(2).
The majority of the Hearing Committee recommended a sixty-day suspension with no restitution to Ms. Cante. In a separate opinion as to sanction, the Hearing Committee Chair concluded that Respondent should be suspended for thirty days and required to make restitution to Ms. Cante in the amount of $1,435 (the balance of the retainer and costs paid by Ms. Cante less the $200 repayment Respondent made to her). In his brief to the Board, Bar Counsel does not take exception to the recommendation for a sixty-day suspension and urges in addition that Respondent be ordered to make restitution to Ms. Cante in the amount of $1,435. For the reasons set forth below, the Board recommends that Respondent be suspended from the practice of law for a period of thirty days.
On November 23, 1985, Ms. Maria del Carmen Cante retained Respondent, a member of the District of Columbia Bar, concerning an immigration matter with regard to her niece and brother. Ms. Cante paid Respondent $1,600 in legal fees for the two matters, plus $35 for the filing fee for one of the matters. During the Fall of 1985, Ms. Cante also provided Respondent with the necessary documents to process the immigration matters, including the niece's birth certificate, the niece's certificate of marriage, "certificate of the police," letters of recommendation from the niece's employer, and Ms. Cante's brother's birth and marriage certificates.
Respondent failed to return Ms. Cante's telephone calls beginning October 7, 1986, and she filed a complaint with Bar Counsel concerning Respondent in January 1987. In April 1987, Respondent scheduled a meeting with Ms. Cante at the INS, but the two never met. After April 1987, Respondent no longer considered himself to be Ms. Cante's attorney. In May of 1987, Respondent agreed to reimburse Ms. Cante for the fees which she had paid him; he notified Bar Counsel of this agreement in a letter dated June 8, 1987. In a subsequent letter, he promised to pay her by August 31, 1987. Respondent failed to refund the money by that time, but then promised Bar Counsel that he would repay Ms. Cante in $200 monthly installments. Bar Counsel then proceeded to dismiss the complaint against Respondent "in part" because of his promise.1a Respondent sent Ms. Cante one check in the amount of $200 in January 1988; he failed to make any further payments.
Respondent also failed to return all of the documents that Ms. Cante had provided to him. Although in September 1988, he did return several documents to her, he failed to return her niece's birth and marriage certificates and her niece's child's birth certificate. After promising Bar Counsel that he would refund to Ms. Cante the money she had paid him, Respondent filed a petition for bankruptcy. He never notified Bar Counsel, however, of any financial inability to refund to Ms. Cante the legal fees and costs as promised. Respondent's bankruptcy petition was subsequently dismissed and the estate closed by reason of Respondent's failure to file schedules of assets and liabilities and provide information to the Trustee. ...