Before Steadman, Glickman and Washington, Associate Judges.
The opinion of the court was delivered by: Washington, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility
The Board on Professional Responsibility ("Board") concluded that respondent, Michael A. Romansky, acted dishonestly in violation of Rule 8.4 (c) of the Rules of Professional Conduct when he: 1) added hours to the fee bills of two Firm clients in order to "premium bill" contrary to the provisions of their existing fee agreements that only hours actually worked would be billed and without notifying the clients of the premium billing and 2) authored, backdated and used, without the client's approval, a purported letter from the client. For these violations, the Board recommended that Romansky be suspended from the practice of law for thirty days. Before this court, Romansky contends that there was insufficient evidence to support the Board's finding that he possessed the requisite dishonest intent to commit a violation of Rule 8.4 (c). Romansky also argues that the recommended sanction is too harsh. Bar Counsel takes exception to the Board's finding that Romansky's handling of a third account, his father's account, did not violate Rule 8.4 (c). Bar Counsel also contends that a sanction of sixty days should have been recommended by the Board because a thirty-day suspension is inconsistent with prior decisions of this court. We disagree in part with the Board's Report and Recommendation and remand for further findings consistent with this opinion.
The primary facts of this case are largely not in dispute. Romansky is a partner with the law firm of McDermott, Will & Emery ("Firm"). From 1984 to 1995, Romansky was the leader of the Firm's health care practice group in Washington, D.C. As the partner in charge of the health care practice group, Romansky had significant client billing responsibilities. It was his handling of those responsibilities that led to an internal investigation by the Firm into Romansky's billing practices, which culminated in Bar Counsel charging him with six instances of dishonesty in violation of Rule 8.4 (c) of the D.C. Rules of Professional Conduct.
Romansky was charged with four instances of violating Rule 8.4 (c) for dishonestly inflating the bills he sent to four clients. Romansky would add a premium without telling the clients what their bills would have been if Romansky had computed the bills strictly on the basis of the actual professional time invested in the representation at the agreed-upon hourly billing rates. Specifically, after reviewing a pre-bill for a client, Romansky would add time charges to the number of hours that another Firm attorney had recorded for working on that client's matter and then send a final bill to the client, which listed only the amount due and did not disclose that a premium had been added to the bill. At the time of this conduct, the Firm was transitioning to a new client engagement letter. The old letter stated that the Firm's "fees are determined by the actual time spent by our professional staff . . . ." The new letter, however, stated that "fees will be based primarily on the time spent by each professional, although other factors may be taken into consideration." (Emphasis added). In two of the instances, the Board found no violation of Rule 8.4 (c) because the fee agreements with those clients permitted so-called premium billing, and no one has challenged that determination before this court. *fn1 In the other two instances, the Board found that Romansky's conduct was dishonest within the meaning of Rule 8.4 (c) precisely because the fee agreements did not permit premium billing. These clients, Dr. Siepser and Surgical Health, had signed the old engagement letter and should have been billed only for the actual hours worked. In reaching its conclusion that Romansky violated Rule 8.4 (c), the Board did not make an explicit finding as to whether Romansky overbilled Dr. Siepser and Surgical Health knowingly or recklessly or instead did so in the good faith but mistaken belief that their fee agreements allowed premium billing.
The fifth alleged violation involved Romansky's direction to an associate attorney of the Firm to charge the time she spent working on a matter for Romansky's father, Dr. Romansky, to another Firm client, Outpatient Ophthalmic Surgery Society (OOSS). OOSS pays a fixed annual retainer for legal services. The Board concluded that since the client had a fixed fee arrangement with the Firm and was never actually billed for the time the associate spent on Romansky's father's work, the matter was strictly an internal record keeping matter and Romansky did not violate Rule 8.4.
The final charge of dishonesty involved Romansky's preparation and use of a purported client letter. In response to the internal Firm investigation of Romansky's billing practices, Romansky asked the Executive Director of Federated Ambulatory Surgery Association (FASA), a client, to draft a letter regarding the quality and amount of work done by the Firm and Romansky. *fn2 The Executive Director agreed; however, she stated that since she would be out of town the following week, Romansky should send a draft letter to her secretary, which could be read to her when she called into the office. Rather than following the client's directions, Romansky called the client's secretary and dictated a draft over the phone. Romansky then asked the secretary to backdate the letter, put it on letterhead and fax it to Romansky. The letter was never approved by the client. When the client discovered that the letter had been obtained without her permission, she requested the letter not be used for any purpose. Although Romansky assured the client that the letter had been destroyed and had not and would not be used, Romansky had already attached the letter to a billing summary that he submitted to the Firm as part of the investigation. The billing summary falsely stated that the letter had been obtained "a month or so ago." Romansky later spoke to the firm's internal investigator and informed the investigator that he had acted improperly with regard to the FASA letter; however, Romansky did not inform the Firm that the FASA letter had not been received a month or so before.
The Board noted that the violation for the FASA letter alone would warrant a thirty-day suspension. The Board concluded that Romansky's behavior in connection with the FASA letter demonstrated a series of dishonest acts conducted over a two-week period. He drafted a letter in the name of a client, which praised his work as an attorney, backdated it, and used it before the client could verify the content's accuracy. He then lied to his client regarding the letter's use and its continued existence in the Firm's files. As the Board noted, Romansky's misconduct "was not an isolated incident on a single day, under the pressure of an unanticipated, suddenly arising situation." Instead, the Board specifically expressed that respondent "made a deliberate decision to engage in a pattern of dishonest statements . . . in writing, in documents he prepared." The Board additionally characterized respondent's activities as calculated and disingenuous and that backdating the letter was "particularly troublesome."
After finding three violations for dishonesty, the Board recommended a thirty-day suspension, noting that the FASA letter alone would justify the thirty days. Romansky now challenges the Board's decision. Romansky does not dispute the facts alleged by Bar Counsel in the complaint. Instead, he argues that his conduct, at least with respect to the billing practices, was not dishonest and was, at most, negligent, the result of his good faith, though erroneous belief that the fee agreement permitted premium billing. He contends that any misattributed billings to a client were caused by his negligent failure to check the client's retainer agreement with the Firm to verify whether the agreement permitted premium billing before making changes to the amount of fees charged on the pre-bill. Furthermore, Romansky contends that Bar Counsel did not prove that he intended to be dishonest because premium billing was allowed under some of the Firm's retainer agreements, thus dishonest intent cannot be reasonably inferred from the act of premium billing alone.
Bar Counsel takes exception to the Board's findings and recommended sanction, arguing that the Board erred in not finding that Romansky's handling of a third account, his father's account, was also a violation of Rule 8.4 (c) and that the sanction of thirty days was inconsistent with our other decisions.
The Board concluded that Romansky acted dishonestly when he premium billed, without notice, clients who had signed the old engagement letter. According to Rule 8.4 (c), attorneys are prohibited from engaging "in conduct involving dishonesty, fraud, deceit or misrepresentation." This court has stated that dishonesty, fraud, deceit, and misrepresentation are four different violations, that may require different quantums of proof. See In re Shorter, 570 A.2d 760, 767 (D.C. 1990) (expressing that the "four terms should be understood as separate categories, denoting differences in meaning or degree."). Hence, while an intent to defraud or deceive may be required for a finding of fraud, dishonesty may result from conduct evincing "a lack of honesty, probity or integrity in principle; [a] lack of fairness and straightforwardness . . . ." ...