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12/04/92 JAMES E. BROWN

December 4, 1992

IN RE: JAMES E. BROWN


On Petition for Reinstatement in the Bar of the District of Columbia Court of Appeals.

Before Ferren, Terry, and Wagner, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: Petitioner seeks to be reinstated as a member of the bar of the District of Columbia after having consented to disbarrment in 1981. *fn1 The hearing committee that held hearings on the petition for reinstatement, the Board on Professional Responsibility, and Bar Counsel all oppose reinstatement. The sole issue before this court *fn2 is whether petitioner has shown by clear and convincing evidence that he is fit to resume the practice of law. We hold that petitioner has not met this burden because, in testifying before the hearing committee, he failed to admit that he had deliberately deceived the Virginia State Bar Disciplinary Board in a related proceeding. Accordingly, we deny the petition for reinstatement.

I

Petitioner Brown consented to disbarrment in August 1981 after Bar Counsel charged him with disciplinary violations in three separate probate matters. In the first matter, involving the estate of Harold C. Ensley, Brown failed to report two payments to the estate and made payments to himself and to heirs of the estate without court approval. In the second matter, involving the estate of Logan L. Glascoe, Jr., Brown settled a wrongful death case on behalf of the estate for $15,000. Brown then took $5,000 of the award as his fee, again without court approval. A lawsuit was filed against the administratrix, whom Brown represented, and when a judgment of $8,000 was entered against her, Brown satisfied that judgment from another estate (the estate of Frances F. Keith) which he was handling at the time. In the third matter, involving the Keith estate, Brown sold certain real property on behalf of the estate for $14,000 and took $4,389.92 as his fee, without obtaining the court's permission. Brown then used an additional $8,000 taken from Keith estate funds to satisfy the judgment against the administratrix of the Glascoe estate. To conceal this misappropriation, Brown submitted doctored bank records to the court's Auditor-Master. *fn3

As our rule requires in a consensual disbarrment case, *fn4 Brown submitted an affidavit containing an admission of the alleged misconduct, but only with respect to his handling of the Ensley estate. The affidavit stated that Brown "prematurely and without the Court's approval distributed the assets of the estate and failed to report to the Court the sum of $255.00 representing an overpayment of the estate's expenses."

In September 1982 the Virginia State Bar Disciplinary Board ("the Virginia Board") held a hearing ("the Virginia hearing") to consider reciprocal disciplinary action. Because our rule limits the public record of a consensual disbarrment case to this court's order of disbarment, the only evidence before the Virginia Board concerning Brown's disbarrment in the District was our order and Brown's affidavit admitting his mishandling of the Ensley estate. *fn5 The Virginia Board was not made aware of Brown's alleged misconduct as to the Glascoe and Keith estates. The Virginia Board declined to impose the reciprocal discipline of disbarrment but instead ordered that Brown be reprimanded. *fn6 Some time later, after the Virginia Board learned that District of Columbia Bar Counsel had brought other charges beyond the one based on the misappropriation of $255 from the Ensley estate, it initiated another proceeding against Brown, and in January 1984 Brown was disbarred in Virginia for knowingly making a false statement under oath. *fn7

In 1987 Brown filed with the Board on Professional Responsibility (BPR) a petition for reinstatement in the District of Columbia Bar. *fn8 The BPR referred the petition to a hearing committee, which recommended, after a hearing, that Brown be reinstated. The BPR accepted the hearing committee's findings and recommended that this court grant Brown's petition. However, on review of the whole record, this court remanded the case to the BPR "for reconsideration in light of petitioner's disbarrment in Virginia and in light of petitioner's conduct in the Glascoe and Keith, as well as Ensley, matters." In re Brown, No. 88-1406, Order of December 1, 1988 (unpublished).

The BPR in turn sent the case back to the hearing committee, which held another evidentiary hearing in February 1989. During that proceeding ("the remand hearing") Bar Counsel introduced a transcript of the Virginia hearing, and Brown testified. The hearing committee thereafter issued a report recommending that Brown's petition for reinstatement be denied, *fn9 and the BPR adopted the hearing committee's recommendation. The case is now back before us for a final ruling on Brown's petition.

II

In In re Roundtree, 503 A.2d 1215 (D.C. 1985), we identified five factors that must be considered whenever a suspended or disbarred attorney seeks reinstatement as a member of the bar:

(1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney's present character; and (5) the attorney's present qualifications and competence to practice law.

Id. at 1217 (citations omitted). We then said that "in any reinstatement case, primary emphasis must be placed on the factors most relevant to the grounds upon which the attorney was suspended or disbarred." Id. In this case we shall focus our attention primarily on the second of the Roundtree factors, though we shall touch on all of them. *fn10

Brown maintains that acknowledging the seriousness of his misconduct in the single probate matter to which he admitted when he consented to disbarrment satisfied Roundtree's second element. He argues that Roundtree does not require an attorney who has consented to disbarrment to admit, as a condition of reinstatement, his guilt of other charges of misconduct which which were originally brought but never fully prosecuted by Bar Counsel, even though the attorney may have no legal or factual basis for contesting those charges. This argument does have some appeal, but it ignores the obvious fact that the ...


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