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In re Hallmark

August 28, 2003

IN RE KIM E. HALLMARK, RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA ON REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY


Before Farrell, Ruiz and Reid, Associate Judges.

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

Argued June 20, 2002

Kim E. Hallmark excepts from a report and recommendation of the Board on Professional Responsibility ("Board"), which found several violations of Rules 1.4 (a), 1.15 (d), 1.16 (d) and 8.4 (d) of the District of Columbia Rules of Professional Conduct and our Rule XI, Sections 2 (b)(3) and (4). Respondent challenges the Board's findings that she violated Rules 1.15 (d) and 1.16 (d) by failing to refund unearned fees to a client after termination of legal representation, and Rule 1.4 (a) by failing to keep her clients reasonably informed of the status of their respective cases. She also excepts to the Board's recommendation that she be suspended for ninety days with a requirement that she prove fitness to practice law before reinstatement. Bar Counsel notes an exception to the Board's finding that respondent's conduct in submitting a Criminal Justice Act (CJA) voucher to an Associate Judge of the Superior Court of the District of Columbia did not violate Rule 8.4 (d). We accept the Board's findings *fn1 except for one of the Rule 1.15 (d) violations, which we think is duplicative in this case, and adopt the Board's recommendation that respondent be suspended from the practice of law in the D istrict of Colum bia for ninety days, with reinstatement conditioned upon a showing of fitness to practice law and proof of restitution to her clients as directed by the Board.

I. FACTS

Bar Counsel initiated disciplinary proceedings against Kim Hallmark, a solo practitioner admitted to the District of Columbia Bar in 1993, based on five different claims of misconduct. The first case arose out of respondent's submission of a CJA voucher to the Superior Court for her representation in 1993 of Antonio Jackson, the complaining witness in an attempted-murder case. Respondent committed several errors in submitting her voucher, including filing the voucher late *fn2 and claiming fees in an amount substantially above the statutory lim it without providing supporting information to the court. *fn3 Judge Henry H. Kennedy, Jr., who was the presiding judge in the matter, declined to approve respondent's requested payment as submitted and asked that she provide further written explanation for the claims made in her voucher within two weeks. Respondent, however, did not comply with that request and never provided any further explanation to Judge Kennedy.

By letter dated February 1, 1996, Judge Kennedy informed then Superior Court Chief Judge Eugene N. Hamilton that he would not approve payment of respondent's voucher. Judge Kennedy also disapproved payment of a voucher submitted by Darryl Smith, respondent's investigator, because the services were not pre-authorized and made improper or irregular requests for payment. In his order denying payment on Ms. Hallmark's voucher, Judge Kennedy "question[ ed] the bona fides of Ms. Hallmark's affirmation of the 'truth and correctness' of her statements on her voucher" and stated that "he would report the matter to Bar Counsel because he had reason to believe that respondent had violated the Rules of Professional Conduct."

In the second case that form ed the basis of Bar Counsel's proceedings, respondent represented Eugene Franklin, a District of Columbia correctional officer who retained respondent in 1995 to file a medical malpractice claim. At a hearing before a committee of the Board on Professional Responsibility, Mr. Franklin recounted that respondent never filed a lawsuit on his behalf, despite the fact that he had given her a total of $925 for various filing and representation fees. According to Mr. Franklin, he attempted to communicate with respondent between September 1995 and March 1996, but found that the telephone number he had for respondent had been disconnected. Even when he located a new telephone number for her, she did not respond to a number of messages that he left inquiring about his case. Although in January 1996 respondent consulted with a medical expert who had examined Mr. Franklin for purposes of evaluating his proposed malpractice action, she did not communicate the expert's opinion that there had been no malpractice nor his recommendation that he see another physician, until March or April. In May of 1996, Mr. Franklin sent a certified letter to respondent, requesting that she return the fees he had paid as she had failed to resolve the m atter, file suit, or maintain communication with him. When respondent did not com ply or answ er his letter, Franklin filed a complaint with Bar C counsel. *fn4

The third case involved respondent's representation in 1995 of Jenise I. Patterson, who sought assistance in expunging a 1982 misdemeanor conviction for carrying a dangerous weapon. After agreeing to represent Ms. Patterson, respondent did not communicate with her client regarding her case for approximately a year and a half. Ms. Patterson eventually had the opportunity to question respondent about the status of her case when she happened upon respondent on a corner near the building where she resided. Respondent told Ms. Patterson that the m atter was "done." Unclear about what that remark meant, Ms. Patterson tried several times to contact respondent to obtain a more complete explanation. According to Ms. Patterson, she tried but was unable to reach respondent. Despite the fact that the motion to expunge was denied in 1996, respondent did not deliver a copy of the court's order to Ms. Patterson until 1998. By that time, Ms. Patterson had already filed a complaint with Bar Counsel.

The fourth case involved respondent's representation of Troy Bedney, a Lorton prisoner, who retained her to explore a personal injury claim. After respondent investigated Mr. Bedney's allegations that he had endured injuries while riding in a prison van, she concluded that Mr. Bedney had suffered virtually no injuries and that his claim had no merit. Respondent, however, failed to inform her client that she was not going to pursue his claim. Mr. Bedney filed a complaint with Bar Counsel claim ing she was unresponsive. In a letter responding to the complaint filed by Mr. Bedney, respondent admitted that she "did not communicate [her] withdrawal to Mr. Bedney," and conceded that she should have done so in writing.

The fifth case arose out of respondent's representation in 1996 of Donna Roberson in a landlord-tenant dispute before the Superior Court of the District of Columbia. Ms. Roberson had paid respondent a flat fee of $1,000 to appear in court on her behalf and to prepare a motion to dismiss the suit brought against her. Respondent entered her appearance with the court and requested a continuance, which the trial court granted. Thereafter, because respondent did not meet with Ms. Roberson concerning the matter, Ms. Roberson felt compelled to submit a pro se appeal on an issue related to the landlord-tenant dispute.

Ms. Roberson sent a letter to respondent terminating her services and demanding the return of the $1,000 retain er. Respondent never answered the letter. Ms. Roberson filed a pro se motion for a continuance in the landlord-tenant case, informing the trial court that she was seeking new counsel as respondent had effectively withdrawn from the case. Respondent then filed an emergency motion to withdraw from representing Ms. Roberson because "no retainer agreement or fee has been forthcoming" and her client had failed to respond to her numerous contacts. The trial court denied respondent's request to withdraw unless Ms. Roberson decided to proceed pro se or obtain new counsel. The court also denied Ms. Roberson's motion for a continuance of the trial date. Thereafter, Ms. Roberson retained new counsel, but never informed respondent that she had done so prior to the trial date. Respondent appeared in court on the trial date, but because new counsel was present, did not participate in Ms. Roberson's trial. Respondent never returned any portion of the $1,000 fee to Ms. Roberson, and Ms. Roberson filed a complaint with Bar Counsel.

In addition to the above client matters, the Board also considered respondent's failure to cooperate with Bar Counsel's investigation of the complaints filed by Franklin and Patterson. Starting in 1996, Bar Counsel sent at least four letters and a subpoena to respondent requesting that she respond to Franklin's complaint. Hallmark did not respond to any of these letters from Bar Counsel nor to an order from the Board ordering her to respond to the Franklin complaint within 10 days. Similarly, in the Patterson case, respondent failed to answer numerous requests from Bar Counsel for a response to the complaint filed against her and an order from the Board directing her to do so w ithin 10 days. Hearings on the various complaints were held in 1998 and, with limited exceptions, respondent had still not provided a response to the requests. Respondent alleged that she had different addresses during the period when the requests were mailed, and had not received them. The Board did not accept respondent's explanation, however, as none of the documents was returned by the postal service as undeliverable.

The Board concluded that Hallmark's failure to keep her clients (Franklin and Patterson) reasonably informed of the status of their cases, to return their ca lls and to com ply promptly with their reasonable requests for information violated Rule 1.4 (a). Respondent was also found to have violated Rule 1.15 (d) in the Franklin and Roberson cases by failing to promptly return unearned fees when her representation of those clients was terminated. The Board found several violations of Rule 1.16 (d): failing to notify Mr. Franklin in a timely fashion of her decision not to pursue his case and not returning an unincurred filing fee of $125 he had advanced until the second day of the hearing in this case; failing to return an advanced unearned legal fee to Ms. Roberson; and failing to timely inform Mr. Bedney that she had decided not to pursue his case any further. In addition, the Board found that respondent's failure to respond to Bar Counsel's and the Board's requests for information ...


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