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In re Lopes

April 12, 2001

IN RE JOSEPH A. LOPES, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS
ON EXCEPTION OF BAR COUNSEL TO THE REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY



Before Schwelb, Farrell, and Reid, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued March 8, 2001

In a proposed simultaneous disposition of three District of Columbia disciplinary proceedings instituted by our Bar Counsel and one reciprocal discipline case that originated in Maryland, the Board on Professional Responsibility has recommended that Joseph A. Lopes be suspended from practice for six months, nunc pro tunc to July 29, 1998, and that his suspension be followed by a two-year period of probation, with conditions. Bar Counsel agrees that Lopes should be suspended for six months, but excepts to the recommended probation, arguing instead that as a condition of reinstatement following his suspension, Lopes should be required to demonstrate his fitness to practice law. Although Bar Counsel's position is not unreasonable, we apply our deferential standard of review and direct the imposition of discipline consistent with that recommended by the Board.

I. THE PROCEEDINGS AGAINST LOPES

The evidentiary facts, which are largely undisputed, were developed in hearings conducted before Hearing Committee Number Two in July and October 1997. The Committee found that, in the original disciplinary cases, Lopes committed ethical violations primarily involving neglect and dishonesty. The Board adopted the Committee's evidentiary findings. The Board further found that Lopes' conduct which was the subject of the Maryland proceeding likewise involved neglect and dishonesty. The facts of the four cases are briefly summarized below.

A. The original disciplinary proceedings.

1. Correia.

On August 30, 1990, Lawrence Correia retained Lopes to represent him in an employment discrimination matter. On January 11, 1991, Lopes filed a complaint on Correia's behalf in the United States District Court for the District of Columbia. The defendant subsequently filed a motion for summary judgment. On December 21, 1993, in a supplemental opposition to this motion, Lopes submitted an affidavit on which he had signed Correia's name and had attempted to reproduce Correia's signature. Mr. Correia was not in the District of Columbia when the affidavit was executed and, contrary to a representation in the affidavit, he did not personally appear before the notary. In his testimony before the Hearing Committee, Lopes maintained that he had not intended to mislead the court by signing his client's name. He claimed that all of the information in the affidavit was true, and that it had been provided, and later confirmed, by Mr. Correia.

Although Lopes' pleadings and motions in Correia's case were repeatedly filed at least a few days late, they were all accepted by the court without sanction or admonition. Lopes failed to respond in timely fashion to discovery requests, and the defendant ultimately filed a motion to compel the plaintiff to respond. In October 1994, when Lopes belatedly answered the defendant's interrogatories, he signed his client's name to the responses without disclosing that the signature was not Correia's. According to his testimony before the Hearing Committee, Lopes believed that he was authorized to sign his client's name to the answers.

In March 1995, Mr. Correia attempted to mail a document to Lopes at Lopes' business address. Lopes had moved from his office without notifying his client, and Correia's letter was returned undelivered. In March 1995, Correia's discrimination case was decided adversely to Correia. Having failed to notify the court of his change of address, Mr. Lopes did not receive a copy of the court's decision. Mr. Correia ultimately learned of the court's disposition of his case by contacting the judge's chambers.

2. Freeman.

Evelyn Freeman retained Lopes in March 1994 in connection with her responsibilities as personal representative of a decedent's estate. The estate owned certain rental property, and Ms. Freeman sought Lopes' assistance in evicting tenants from the property for non-payment of rent and in securing a quitclaim deed. Ms. Freeman paid Lopes a retainer of $775, of which $600 represented advance payment for the eviction and $175 was intended to be compensation for obtaining the deed. Thereafter, Lopes rarely contacted his client, and he did not return her telephone calls. Ms. Freeman became increasingly disenchanted with Lopes' representation, and on October 31, 1994, she wrote a letter to Lopes in which she terminated the relationship and requested a refund of $175. Lopes told the Hearing Committee that he did not recall receiving Ms. Freeman's letter. During Bar Counsel's investigation, Lopes agreed to refund Ms. Freeman's entire legal fee, but he had not done so as of the date of the hearing.

An ethical complaint arising out of Lopes' representation of Ms. Freeman was docketed on February 12, 1996. Bar Counsel mailed the complaint to Lopes on February 21, 1996, and requested a response by March 2, 1996. Lopes did not respond to the complaint. Lopes also ignored a subsequent follow-up letter from Bar Counsel, as well as Bar Counsel's eventual motion to compel and an order of the Board directing a response. Lopes ultimately submitted a response on September 3, 1996, more than half a year after the complaint had been mailed to him.

Following several unsuccessful attempts by Bar Counsel to serve Lopes with a subpoena for his office file and to secure his cooperation, a process server succeeded in accomplishing service. As of the date of the Hearing Committee Report, Lopes had failed to comply with the subpoena.

3. Byers.

On or about June 1, 1995, Andrea Byers retained Lopes to represent her and her two sisters in connection with the administration of the estate of their deceased mother. The sisters sought Lopes' assistance in securing a copy of the deed of a house, which was the estate's sole asset. Ms. Byers paid Lopes a retainer fee of $1,200. Lopes did not provide the Byers sisters with a retainer agreement setting forth the basis for the fee or the rate at which Lopes would charge his clients.

Lopes belatedly delivered letters of administration to his clients five months after he had agreed to do so. He never obtained a copy of the deed. He failed to keep his clients informed about the status of their case. He was tardy in responding to the Byers sisters' inquiries and, in some instances, he did not respond at all. Lopes' first substantive action on his clients' behalf was to file a petition for probate. This initial step was not taken until May 1, 1996, two weeks after a disciplinary complaint against him had been docketed.

On May 7, 1996, Lopes filed a notice of appointment purportedly signed by his clients. In fact, the purported signatures were written by Lopes. An expert witness called by Bar Counsel testified before the Hearing Committee that Lopes had attempted to simulate the sisters' signatures. Lopes had not been authorized by the Byers sisters to sign their names to the documents. As in the Correia matter, however, Lopes claimed to believe that his clients would not have objected.

A disciplinary complaint based on Lopes' representation of Ms. Byers and her sisters was docketed on April 18, 1996. As in the Freeman matter, Lopes initially ignored the complaint. On August 12, 1996, at the request of Bar Counsel, the Board entered an order directing Lopes to file a response. On August 29, 1996, Lopes finally did so. He stated, inter alia, that all filings in the case had "been accomplished." In fact, the inventory for the estate was overdue. In this matter, as in the Freeman case, Lopes failed to comply with a subpoena for his original office file.

B. The reciprocal discipline matter.

In the Maryland proceeding, Lopes acknowledged that he had neglected a matter involving a foreclosure on real estate purchased at a tax sale. He further admitted that he had not responded accurately or in timely fashion to requests for information from his client, that he had misrepresented the status of the legal matter to the client and to the Maryland Attorney Grievance Commission, and that he had failed to cooperate in the disciplinary investigation. *fn1

On October 22, 1997, the Maryland Court of Appeals entered an order, by consent, suspending Lopes from practice in that jurisdiction for a period of ninety days. Reinstatement was conditioned upon Lopes' payment of $1,000 to the Client Security Trust Fund and upon Lopes' engagement of a practice monitor, who was to make regular reports to Bar Counsel for two years following Lopes' readmission. On July 29, 1998, Lopes was reinstated in Maryland, but he did not remain in good standing for long. On November 13, 1998, less than four months after his readmission, Lopes was suspended from practice once again, this time for failure to comply with the conditions of his reinstatement. It appears that Lopes had failed to make the required payment to the Client Security Trust Fund and had not secured a court monitor to supervise his practice. Lopes attributes his noncompliance to shortage of funds. So far as we are aware, Lopes remains under suspension in Maryland.

C. Lopes' suspension from practice in the District of Columbia.

On December 18, 1997, following the imposition of discipline in Maryland, this court suspended Lopes from practice in the District and referred the reciprocal matter to the Board. On January 20, 1998, Bar Counsel filed a statement with the Board recommending the imposition of reciprocal discipline. Bar Counsel advised the Board that Lopes had not filed an affidavit as required by Rule XI, § 14 (g). Bar Counsel therefore proposed that any period of suspension that might be imposed as reciprocal discipline should not be deemed to have begun, for purposes of Lopes' eligibility for reinstatement, until Lopes had complied with that requirement. Lopes filed the § 14 (g) affidavit on July 29, 1998.

D. The Hearing Committee's report.

On April 23, 1998, after having received extensive testimony, the Hearing Committee issued its Report on the three District of Columbia complaints against Mr. Lopes. The Committee found that Lopes ...


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