Before Schwelb and Reid, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Per Curiam
On Report and Recommendation of the Board on Professional Responsibility
Claude W. Roxborough was admitted to the District of Columbia Bar on January 26, 1973. Since that time, he has been the subject of several disciplinary proceedings which are described in detail in the comprehensive and balanced Report and Recommendation of the Board on Professional Responsibility dated March 12, 2001, a copy of which is attached hereto and made a part hereof. See generally In re Roxborough, 675 A.2d 950 (D.C. 1996) (per curiam) (Roxborough I); In re Roxborough, 692 A.2d 1379 (D.C. 1997) (per curiam) (Roxborough II); In re Roxborough, 707 A.2d 57 (D.C. 1998) (Roxborough III). As reflected in the Board's Report, this court has suspended Roxborough from practice and has conditioned his reinstatement on proof of fitness to practice law.
Roxborough petitioned the court for reinstatement, and his petition was initially considered by Hearing Committee No. One. Before the Committee, Bar Counsel filed proposed Findings of Fact and Conclusions of Law suggesting that Roxborough be reinstated with conditions, substantially as noted below. The Hearing Committee likewise recommended reinstatement with conditions. The Board, after carefully applying the five "Roundtree factors," *fn1 concluded that "this is a close case for reinstatement because of the seriousness of the original misconduct, all of which was related to Petitioner's practice, and the fact that restitution is incomplete." Nevertheless, the Board recommended reinstatement with the following conditions:
1) That Petitioner implement the restitution plan attached to this Report and Recommendation, and report his progress to Bar Counsel every six months;
2) That Petitioner continue his consultation with the Lawyers' Counseling Committee and Lawyers' Practice Assistance Committee for at least three years after reinstatement, and report to Bar Counsel concerning those consultations every six months; and
3) That Petitioner be under the supervision of a practice monitor to be appointed by the Board for one year following Petitioner's entry of private practice. Petitioner shall inform the Board's Executive Attorney 60 days before undertaking private practice so that a practice monitor can be appointed. The practice monitor shall report to the Executive Attorney for the Board every three months.
We agree with the Board's view that Roxborough's misconduct was serious. We are also of the opinion that caution should be exercised in ordering reinstatement where, as in this case, substantial amounts in restitution remain to be paid. Nevertheless, the deference that we accord to the Board's recommendation, D.C. Bar R. XI, §§ 9 (g) & 16 (e), is even greater where, as here, the petitioner's position has the active support of the Office of Bar Counsel. See, e.g., In re Goldsborough, 654 A.2d 1285, 1288 (D.C. 1995). Accordingly, Roxborough is hereby reinstated to the practice of law, subject to the conditions described in the Board's report and quoted above.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
In the Matter of: CLAUDE ROXBOROUGH, Petitioner.
(Original Disciplinary Proceedings: No. 96-BG- 1491 Judges Steadman, Ruiz, and Reid No. 95-BG-1710 Judges Terry, Steadman and Schwelb No. 96-BG-1003 Judges Ferren, Terry, and Senior Judge Gallagher)
REPORT AND RECOMMENDATION
This matter arises from the petition by Claude Roxborough to be reinstated to the Bar. Bar Counsel does not object to his reinstatement provided certain conditions are met. Hearing Committee Number One recommends reinstatement with the recommended conditions. The Board adopts the Hearing Committee's findings of fact, with minor additions to describe the underlying disciplinary cases in greater detail. The Board concludes that, deferring as it should to the Hearing Committee's fact findings, Petitioner has established clear and convincing evidence to satisfy the requirements for reinstatement and recommends reinstatement with conditions.
1. Born on August 12, 1947, Petitioner now is 53 years old. He was admitted to the Bar on January 26, 1973, after he graduated from Howard University School of Law in 1972. After he finished law school, he clerked for The Hon. Joseph Waddy of the United States District Court for the District of Columbia.
Roxborough I (Bar Docket No. 140-93)
2. In April 1991, Dewey Madison retained Petitioner to file a complaint in the Circuit Court for Prince George's County (the "Maryland Court") for review of a custody and child-support order. BX 6 at 2. *fn2 In light of his ex-wife's decision to relinquish custody of their son, Mr. Madison sought relief from the obligation to pay child support. Id. Mr. Madison paid Petitioner a $500 retainer fee. Id.
3. A complaint was prepared. After Mr. Madison executed it, Petitioner signed and filed it in May 1991. Id. When the Maryland Court referred the matter to mandatory mediation, Petitioner's law firm billed Mr. Madison for an additional $215, which he promptly paid. Id.
4. Petitioner was the only member of his law firm who was licensed to practice in Maryland. Id. In light of his diminishing eyesight and emotional difficulties, discussed in greater detail at pages 12-14, below, he delegated the work on the Madison matter to his associates. The members of Petitioner's staff who worked on Mr. Madison's matter did so under his supervision. Id.
5. Petitioner's law firm wrote to Mr. Madison in September 1991 to inform him that the complaint had been filed but that his ex-wife had not responded. Id. Mr. Madison telephoned an associate at Petitioner's law firm to report his ex-wife's location. Id. at 2-3. Despite Mr. Madison's efforts, Petitioner failed to effect service of the complaint or to file any documents with the Maryland Court explaining his failure to effect service. Id. at 3.
6. In January 1993, the Clerk of the Maryland Court notified Petitioner that the Madison complaint would be dismissed for lack of prosecution, unless there was a response by February 8, 1993. Id. Someone from Petitioner's law firm wrote to Mr. Madison to inform him that because he had failed to respond to the letter sent by the law firm in September 1991, and because the Maryland Court was about to dismiss his complaint, the case would be put in inactive status. Id. Mr. Madison immediately contacted the author of the letter and made it clear that he in fact had responded to the letter sent in September 1991. Id.; Tr. I 76. He also wanted to know what had happened to his case, but no explanation ever was provided him. BX 6 at 3.
7. In February 1993, the Maryland Court dismissed Mr. Madison's civil complaint. Id. at 4. Petitioner was found to have failed: to act with reasonable promptness (Rule 1.3), to communicate with his client (Rule 1.4(a)), to supervise an associate (Rule 5.1(b)), and to act competently (Rule 1.1(a)). BX 1. The Court suspended Petitioner with a requirement that he demonstrate fitness before reinstatement. In re Roxborough, 675 A.2d 950 (D.C. 1996)(per curiam)("Roxborough I"). Petitioner did not make the showing of disability in mitigation of sanction permitted by In re Kersey, 520 A.2d 321 (D.C. 1987), but, before the Court, did "acknowledge[ ] that he `recognizes that he cannot handle his obligation to continue to practice.'" 675 A.2d at 951. The Court ordered that Petitioner show fitness before reinstatement in accordance with D.C. Bar R. XI, § 16(d). Id. at 952. No restitution to the client involved was required, although the Board had recommended that restitution be included as part of the sanction.
8. In November 1991, while in pursuit of another automobile, a District of Columbia police car collided with a third automobile, killing the driver, Tanya Rich, her daughter and her unborn son. BX 9 at 2-3. The driver's mother and sister, Alberta Rich and Melody Rich respectively, were named co-personal representatives of her estate. Id. A third person, William Woodard, who claimed paternity of the driver's two deceased children, was appointed personal representative of the children's estates. Id. at 3.
9. Shortly before the statute of limitations for filing a wrongful-death suit against the District of Columbia was about to expire, Alberta Rich hired Petitioner to represent her. Id. Another lawyer, Patrick Regan, Esquire, was hired to represent Mr. Woodard and Melody Rich. Id.
10. In September 1992, Petitioner filed a wrongful-death action on behalf of Alberta Rich, and Mr. Regan filed similar suits on behalf of Mr. Woodard and Melody Rich. Id. From October 10, 1992 onward, Petitioner knew that Mr. Regan was representing Mr. Woodard. Id.
11. In November 1992, Petitioner sought to remove Mr. Woodard as personal representative of the children's estates and to appoint Alberta Rich in his place. Id. As a basis of removal, Petitioner alleged that Mr. Woodard had abused Tanya Rich and was not the father of the two deceased children. Id.
12. Mr. Regan responded by filing a petition to establish Mr. Woodard's paternity of the children, to declare him Tanya Rich's common-law husband, to remove Petitioner's client as co-personal representative of Tanya Rich's estate, and to appoint Mr. Woodard as the sole personal representative of Tanya Rich's estate. Id.
13. In November 1992, Petitioner hired a private investigator, Richard Ford, to look into the circumstances surrounding the accident. Id. Petitioner failed to warn Mr. Ford of the obligation to avoid contact with other litigants who were represented by counsel. BX 9 at 3-4.
14. Without Petitioner's knowledge or consent, Mr. Ford contacted Mr. Woodard on several occasions. Id. at 4. On January 8, 1993, Mr. Ford informed Petitioner that Mr. Woodard wanted to meet with him, and Petitioner told Mr. Ford to cease his contact with Mr. Woodard. Id.
15. On the same day, Petitioner met Mr. Woodard in Petitioner's office. Id. Petitioner testified that Mr. Woodard informed him that he had fired Mr. Regan. Tr. II 60. Petitioner told Mr. Woodard that he needed something in writing, and he prepared a letter dismissing Mr. Regan, backdated to January 7, 1993, for Mr. Woodard's signature. BX 9 at 4. Although Alberta Rich agreed to Petitioner's dual representation of Mr. Woodard with her, Petitioner failed to discuss with either Alberta Rich or Mr. Woodard the conflict of interest between them. Id. Mr. Woodard signed an agreement retaining Petitioner to represent him in his wrongful-death action. Id.
16. After Mr. Regan learned what had happened, he met with Mr. Woodard and was re-hired as Mr. Woodard's attorney. Id. Mr. Regan then contacted Petitioner, demanding that Petitioner and Mr. Ford cease contacts with Mr. Woodard. Id. Mr. Ford continued to attempt to contact Mr. Woodard. Id. Petitioner testified that Mr. Ford did so without his authority. Tr. II 61-62.
17. Petitioner sent letters to Mr. Regan, contending that he still represented Mr. Woodard. BX 9 at 5. Mr. Regan responded by filing an ethical complaint with Bar Counsel and informing Petitioner that Mr. Woodard wanted to be represented by him. Id.
18. In the spring of 1993, Petitioner filed a complaint on behalf of Alberta Rich against Mr. Woodard, alleging his liability for the deaths of Tanya Rich and her children. Id. Petitioner also filed a motion stating that Mr. Ford's investigation had led to the discovery of Mr. Woodard's responsibility. Id. In October 1993, Petitioner withdrew as counsel for Alberta Rich. Id. The wrongful-death matters later were settled. Id.
19. The Court concluded that Petitioner engaged in the unauthorized communication with an adverse party represented by counsel (Rule 4.2(a)), represented a client with an adverse position, creating an actual conflict of interest (Rule1.7(a)), misused client confidences (Rule 1.6(a)(2)), and failed to supervise an associate (Rule 5.3(a)), and to mitigate the consequences of the unethical conduct of a non-legal subordinate subject to his supervision (Rule 5.3(c)). In re Roxborough, 692 A.2d 1379 (D.C. 1997)(per curiam)("Roxborough II").
20. In 1992, Arthur Takeall filed a copyright-infringement claim against PepsiCo in the United States District Court for the District of Maryland. BX 9 at 8. After he lost a motion for summary judgment, he discharged his lawyer and retained Petitioner to handle his appeal before the United States Court of Appeals for the Fourth Circuit. Id.
21. After Petitioner was retained, he persuaded Mr. Takeall to rehire his earlier lawyer. Id. While Petitioner was to be lead counsel on the appeal, it was unclear which lawyer had principal responsibility for Mr. Takeall's other matters, including proceedings in the District Court concerning the infringement action. Id.
22. Mr. Takeall believed that Petitioner was solely responsible for all aspects of the infringement action. Petitioner did not share that understanding. Id.
23. Mr. Takeall understood that Petitioner would seek to stay the judgment in the District Court. Id. Petitioner failed to do so or to enter his appearance. The District Court issued a writ of attachment garnishing Mr. Takeall's bank account, which contained his veteran's disability benefits. Id. Mr. Takeall expected Petitioner to seek the release of the benefits, but Petitioner failed to do so. Id.
24. In June 1993, Mr. Takeall fired Petitioner and refused to reconsider his decision. Id. A few days after his termination, Petitioner sent a letter to PepsiCo's attorney, without Mr. Takeall's permission, along with a proposed consent agreement releasing the garnished funds. Id. Mr. Takeall demanded that Petitioner cease to represent him. Id. Petitioner testified that he did not take Mr. Takeall's firing of him seriously because Mr. Takeall had fired him before. Tr. II 64. Petitioner billed Mr. Takeall for expenses, including long-distance telephone calls made after he had been fired. BX 9 at 9.
25. The Court found that Petitioner failed to withdraw after discharge (Rule 1.16(a)(3)). Roxborough II, 692 A.2d 1379.
26. For all of the misconduct found in Roxborough II, the Court imposed a 60-day suspension, nunc pro tunc to the date of the completion of the suspension in Roxborough I, to run consecutively to that 30-day suspension, with a requirement that Petitioner show fitness for reinstatement, citing D.C. Bar R. XI, § 16, and complete a course on the Rules of Professional Conduct. 692 A.2d 1379. Petitioner did not raise Kersey mitigation issues. The Court did not order restitution to any of the clients involved. Roxborough III (Bar Docket No. 383-96)
27. On September 11, 1996, the Court of Appeals of Maryland suspended Petitioner for 60 days. BX 11. That Court acted on a joint petition filed by the Maryland Attorney Grievance Commission and Petitioner. BX 11, 13, 14 at 1. The petition, in turn, was based on the District of Columbia Court of Appeals' decision in Roxborough I to suspend Petitioner for 30 days with fitness, and on two other complaints pending before the Attorney Grievance Commission. BX 13, 14 at 1.
28. On November 12, 1996, the Court of Appeals of Maryland approved a joint consent that Petitioner be placed on inactive status. BX 12. The Court of Appeals of Maryland ordered Petitioner to remain inactive until he could show by proper evidence that his health had been restored, and that he was capable of engaging in the competent practice of law. Id.
29. The District of Columbia Court of Appeals concluded that the action of the Court of Appeals of Maryland was not based on the District of Columbia discipline alone, but was based in part on independent violations in Maryland. The Court ordered a reciprocal suspension, nunc pro tunc to November 4, 1997, the date of Petitioner's filing of his § 14(g) affidavit in Roxborough II, with reinstatement to be governed by "the terms of D.C. Bar R. §§ 13(g) and 16(d) and the prior suspension orders" of the Court, with eligibility for reinstatement at the end of the terms of suspension Petitioner already was serving. In re Roxborough, 707 A.2d 57, 59 (D.C. 1998)("Roxborough III"). Issues of disability thus were introduced ...