On Report and Recommendation of the Board on Professional Responsibility
Before Steadman, Farrell* and King, Associate Judges.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: Before us is a case of conduct by a member of our Bar that involves not only a pattern of dishonesty and lying but blatant fabrication and creation of evidence. The Hearing Committee recommended a suspension of three years with a fitness requirement, *fn1 noting that if it felt free to do so under existing precedent, it would have recommended disbarment. The Board on Professional Responsibility, apparently deeming itself restricted by In re Hutchinson, 534 A.2d 919 (D.C. 1987) (en banc) (one-year suspension for lying under oath to Securities and Exchange Commission), has recommended a one-year suspension with a requirement of fitness. *fn2 We think the case before us involves egregious misconduct of a scale far beyond Hutchinson. We conclude that prior precedent does not limit possible sanctions in attorney dishonesty cases to a suspension and that the misconduct here is of a magnitude compelling disbarment. Accordingly, we order respondent disbarred from the practice of law in the District of Columbia.
Respondent has been a member of this bar since May 9, 1978. In March 1992, respondent was charged with ethical violations, arising out of two separate incidents, involving DR 1-102(A)(4) (dishonesty, fraud, deceit, and misrepresentation), DR 1-102(A)(5) (conduct prejudicial to the administration of Justice), and DR 7-102(A)(4) (knowing use of false evidence). The Hearing Committee made some forty-five pages of detailed findings of facts which may be summarized as follows.
The first incidents of misconduct arose out of the representation by respondent of his fiancee before the IRS and the Tax Court involving substantiation of rental expenses and charitable deductions claimed by respondent's fiancee for the 1982 tax year. Essentially, the respondent proffered fabricated or altered evidence to the IRS, made false statements to IRS counsel, and lied under oath before the Tax Court. In a 1985 meeting between respondent and an IRS attorney respondent tendered, in support of the deductions, a copy of a "$7000 check," and a copy of a church contribution form. Both of these documents were manufactured evidence, as respondent knew.
The proffered check was originally written for $40 and had been altered to purport to be a check for $7000, the amount of the claimed rental expense deduction. In a subsequent telephone conversation with an IRS attorney, respondent again contended that the check, which he had already presented to the IRS, represented a rent payment from his fiancee to support the claimed deduction. During the trial before the Tax Court on the claimed deductions, respondent lied under oath to the court denying, in the entirety, his involvement with the check tender. *fn3 Then to the Hearing Committee, again respondent lied, saying that he had not tendered a copy of the check as substantiation and that he had not said that the check was a rent payment in a subsequent phone conversation with an IRS attorney. The Hearing Committee concluded that respondent knowingly presented an altered check with an intent to deceive, and lied to both the Tax Court and the Hearing Committee about its origin and his involvement.
The church contribution form purported to evidence contributions made by respondent's fiancee to the church which never were, in fact, made. The document was an official printed form used by the church to record donations. However, the form was not prepared by church officials nor sent by the church to respondent's fiancee. The church had no record of the contributions shown. Again respondent tendered this form, in the IRS conference, as the only document to substantiate the charitable deduction. At the trial before the Tax Court on the claimed deductions, respondent lied under oath saying that he had not tendered the form. At the Hearing Committee hearing, respondent acknowledged that he had tendered the form but denied that he used it as substantiation. Both documents were proffered with both the knowledge of their falsity and the intent to deceive the IRS as to the claimed deductions. The Hearing Committee concluded that respondent presented these two false documents "which were not what they appeared to be, in an effort to substantiate [his fiancee's] position," evidencing a pattern of misrepresentation and deceit.
The second incidents of misconduct originated from certain real estate transactions between respondent and a neighbor, Arnold Kuperstein, and certain events in the related civil litigation between respondent and a tenant, John Pickard. *fn4 The Hearing Committee found that respondent fabricated elements of three documents, a subdivision agreement, an easement agreement and reciprocal leases, and that he had completely fabricated a letter to support his negotiations with Mr. Kuperstein.
In January 1983, respondent and his neighbor, Mr. Kuperstein, executed a subdivision agreement ["January 1983 subdivision agreement"] regarding two townhomes and five garages they originally had owned as tenants in common. *fn5 The agreement provided that the parties would apply to subdivide the lot. As a result of the subdivision, each party would own one townhouse outright and Mr. Kuperstein would own garage number one and respondent garages two, three, four, and five. The agreement also specified that if they could not subdivide the townhouse and garages, then they would enter into either reciprocal leases or easement agreements to satisfy that end. Mr. Kuperstein did sign the January 1983 subdivision agreement but never notarized nor recorded it with the Recorder of Deeds. Mr. Pickard, respondent's tenant, later found the January 1983 subdivision agreement notarized and recorded in the record of deeds. The notary public, whose purported signature appeared on the agreement, testified that she never recalled notarizing this document or any other nor did it appear in her log of notarizations. The Hearing Committee concluded that respondent had fabricated the notarization of the January 1983 subdivision agreement and then filed it with the Recorder of Deeds. Respondent then lied to the Hearing Committee about these events.
In October 1983 respondent provided to Mr. Kuperstein proposed reciprocal leases, ["October 1983 reciprocal leases"] allegedly approved by a lawyer. After receiving advice from an attorney, Mr. Kuperstein did not sign the leases but instead commissioned his lawyer to draft an easement agreement. In September 1987 Mr. Pickard scheduled a meeting to discuss the garage leases with Mr. Kuperstein, Ms. McKaig, another tenant of respondent's, and Mr. Pickard's lawyer. At the meeting, Ms. McKaig produced copies of the October 1983 reciprocal leases, given to her by respondent, allegedly notarized and executed by respondent and Mr. Kuperstein. *fn6 Mr. Kuperstein expressed surprise and informed the other attendees that the signature and notarization were forgeries. Again the notary public had no recollection of notarizing this document, despite her purported signature appearing on the document. The Hearing Committee found that with respect to the October 1983 reciprocal leases respondent had forged Mr. Kuperstein's signature and then falsely notarized it.
After the October 1983 reciprocal leases had been rejected, in March 1984, respondent insisted that he and Mr. Kuperstein come to some agreement about the leases of the garages and if no agreement were reached, he would sue for specific performance of the January 1983 subdivision agreement. On May 21, 1984, Mr. Kuperstein sent respondent, by certified mail, a proposed easement agreement ["May 1984 easement agreement"] with a cover letter asking him to sign it and to file it with the Recorder of Deeds. The agreement had been executed by Mr. Kuperstein and properly notarized. Respondent never returned an executed copy of the May 1984 easement agreement to Mr. Kuperstein.
On August 4, 1987, Mr. Kuperstein sent respondent a letter, complaining that respondent had leased garages without authority. This August 4, 1987 letter withdrew the offer of the May 1984 easement agreement. Mr. Kuperstein never received any response from respondent. In January 1989, Mr. Kuperstein received a letter from respondent asserting his authority to lease the garages in the townhomes pursuant to the terms of the "May 1984 easement agreement." Respondent also insisted that Mr. Kuperstein file the May 1984 easement agreement with the Recorder of Deeds. Respondent had attached a copy of a "August 7, 1987" letter which was allegedly in response to Mr. Kuperstein's letter of August 4, 1987. The August 7, 1987 letter stated that respondent had executed the May 21, 1984 easement agreement. This August 7, 1987 letter was completely fabricated by respondent.
The "May 21, 1984 easement agreement" finally appeared when respondent produced a copy of it at his deposition in the civil litigation with Mr. Pickard. The Hearing Committee found that respondent had altered paragraphs of the easement agreement by crossing out important sections of the text that Mr. Kuperstein specifically wanted and that respondent had forged Mr. Kuperstein's initials on those paragraphs. The Hearing Committee found that "he did so intentionally and knowingly, with the intention to mislead, and with the intention to use the document to his financial advantage by using it as evidence in pending ...