Before Schwelb and Farrell, Associate Judges, and Nebeker, Senior Judge.
On Report and Recommendation of the Board on Professional Responsibility (BDN359-00).
Argued September 22, 2004
An ad hoc hearing committee found by clear and convincing evidence that Alvin Gilbert Douglass, a member of our Bar, had violated Rules 1.1 (a) and (b),*fn1 1.3 (a) and (c),*fn2 1.8 (a),*fn3 1.8 (g)(1) and (2),*fn4 and 1.16 (d)*fn5 of the District of Columbia Rules of Professional Conduct. The Committee recommended that Douglass be suspended from practice for 180 days.
The Board on Professional Responsibility sustained the Hearing Committee's findings as to all charges except those relating to Rule 1.8 (g). The Board found, however, that Bar Counsel failed to establish by clear and convincing evidence that Douglass violated either Rule 1.8 (g)(1) or Rule 1.8 (g)(2). The Board therefore recommended a shorter suspension of 90 days. Both Douglass and Bar Counsel have filed exceptions to the Board's recommendation.
We adopt in its entirety the Board's comprehensive and cogently reasoned Report and Recommendation, which is attached hereto and made a part hereof. The sole issue that presents any significant difficulty is whether or not Bar Counsel proved, by clear and convincing evidence, that Douglass violated Rule 1.8 (g)(2). As the Board explained, this issue turns on whether Douglass' former client, Mary J. Wilson, was represented by independent counsel when Douglass induced her to sign a General Release protecting him from liability for malpractice. If Mrs. Wilson was not in fact represented by independent counsel -- and Douglass evidently believed that she was not so represented,*fn6 and he dealt with her directly, rather than through independent counsel -- then his conduct, reprehensible in any event, incontestably contravened Rule 1.8 (g)(2). See the Board Report at p. 19. For the reasons stated by the Board, id. at pp. 20-22, however, "[t]he record is less than clear" that Mrs. Wilson was unrepresented at the relevant time, and the Board reasonably found that Bar Counsel failed to prove lack of representation -- an element of a Rule 1.8 (g)(2) violation -- by clear and convincing evidence, as required by Board Rule 11.5 and by our precedents. See, e.g., In re Anderson, 778 A.2d 330, 335 (D.C. 2001).
We must "accept the findings of the Board unless they are unsupported by substantial evidence of record," D.C. Bar R. XI § 9 (g); In re Kennedy, 605 A.2d 600, 603 (D.C. 1992) (per curiam), and we therefore sustain the Board's determination that no violation of Rule 1.8 (g)(2)*fn7 has been established under the applicable standard of proof. We emphasize, however, as did the Board, that "Rule 1.8 (g)(2) makes [it] clear that a lawyer must take great care in attempting to settle a claim for malpractice on behalf of an existing client; he must advise the client, if she is not otherwise represented, that she should seek independent representation on the issue." See Board Report at p. 19. By dealing with Mrs. Wilson directly, Douglass acted as if she was not represented by counsel and, although Bar Counsel did not prove lack of representation by clear and convincing evidence, Douglass' conduct in securing the general release was, to say the least, less than commendable.*fn8
For the foregoing reasons, Alvin Gilbert Douglass is suspended from the practice of law in the District of Columbia for a period of 90 days. Douglass' attention is directed to the requirements of D.C. Bar R. XI §§ 14 and 16, relating to the obligations of suspended attorneys.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
In this case, an Ad Hoc Hearing Committee concluded that Respondent violated a number of disciplinary rules in his representation of Mary J. Wilson in a personal injury claim against Royal Caribbean Cruise Lines. The Hearing Committee concluded that Respondent failed adequately to prepare or pursue Mrs. Wilson's case against the cruise line and then, when Mrs. Wilson discharged him, demanded that Mrs. Wilson release him from liability and confess judgment to liability for attorney's fees as a condition of obtaining her files. The Hearing Committee recommended that Respondent be suspended for 180 days. We sustain some of the Committee's conclusions that Respondent violated disciplinary rules, set aside others, and recommend a suspension of 90 days.
Following are our findings of fact, which, where appropriate, adopt the Hearing Committee's findings, with some modifications and clarifications. These findings of fact are influenced to a considerable extent by the Hearing Committee's express finding, which we accept, that the Wilsons were "credible witnesses in all respects and throughout their testimony." HC Rpt. at 10 ¶ 16.
1. Respondent is a member of the District of Columbia Bar, having been admitted on February 8, 1979, and assigned Bar number 259549. BX A. He is also admitted to practice before the U.S. District Court for the District of Maryland. He is not admitted to practice in the state courts of Maryland and Florida. BX 2 at 1.
2. Mary J. Wilson is an elementary school principal in Maryland. She and her husband, Dr. Clint Wilson, II, a Howard University journalism and communications professor, reside in Maryland. 1 Tr. 20-23, 190-91.
3. During July 28-August 4, 1996, the Wilsons took a cruise aboard a cruise ship operated by Royal Caribbean Cruise Lines. BX C at 12. On August 2, Mrs. Wilson sustained an injury, a burn on her thigh, during a visit to the ship's spa. Id. The burn was caused by a faulty electrode, which was connected to a massage machine and attached to Mrs. Wilson's thigh. 1 Tr. 23-24, 192-93.
4. Mrs. Wilson lost no days from work as a result of the burn, and decided not to have surgery. 1 Tr. 97-98. She received antibiotics, pain killers, and a topical ointment on the ship for her burn. 1 Tr. 24-25, 94-95. She also consulted a doctor at Kaiser Permanente in the autumn of 1996. 1 Tr. 95. This consultation did not cost Mrs. Wilson money as it was covered by her employment benefit package. 1 Tr. 99.
5. When the burn did not heal properly, the Wilsons decided to seek legal representation. 1 Tr. 24-25.
6. The Wilsons were referred by an out-of-town friend, Mr. Walker, to speak with Respondent concerning his recommendations for hiring of local counsel. 1 Tr. 25-26. However, Respondent volunteered to handle the case himself. 1 Tr. 26. Respondent and Dr. Wilson are members of the same social fraternity, which meets on a regular basis in the Washington Metropolitan area. 1 Tr. 25-26; 2 Tr. 108.
7. Respondent did not show up for his first scheduled meeting with the Wilsons in late 1996. The Wilsons and Respondent scheduled another meeting. 1 Tr. 26-27, 194.
8. On December 31, 1996 (about five months after Mrs. Wilson's injury), Respondent met with the Wilsons at his office. Respondent agreed to handle Mrs. Wilson's case. 1 Tr. 28, 194-95.
9. On December 31, 1996, the Wilsons and Respondent signed a contingency fee contract, which provided, in pertinent part, that "If no recovery is obtained, no fees shall be payable to the attorney(s) for his/their services unless otherwise agreed to." BX 6 at 2.
10. On December 31, 1996, the Wilsons also signed an "Authorization and Assignment," which authorized the release of Mrs. Wilson's medical records to Respondent, authorized Respondent to pay any medical bills from the proceeds of any recovery, and stated that Mrs. Wilson would ultimately remain personally liable for medical expenses. The Authorization and Assignment also noted the existence of a three-year statute of limitations on the recovery by a medical provider on any bill for services. BX 6 at 5.
11. Respondent never discussed or explained the meaning of the terms of either his retainer agreement or the Authorization and Assignment with the Wilsons. 1 Tr. 36-40, 197-200. The Wilsons believed that the three-year statute of limitations noted in the Authorization and Assignment pertained to their claim against the cruise line. 1 Tr. 38-39.
12. Respondent never discussed or explained the nature of the case or the value of the case that the Wilsons might have had against the cruise line. 1 Tr. 70-71, 97, 260-61.
13. On January 13, 1997, Respondent asked Mrs. Wilson to facilitate his receipt of her medical records and a witness statement. BX 6 at 12.
14. In February 1997, Respondent forwarded Mrs. Wilson's medical records to Etienne Massac, M.D., a skin injury specialist chosen by Respondent. 1 Tr. 42-43; BX 6 at 12.
15. In March 1997, Dr. Massac examined Mrs. Wilson and issued his report and prognosis opining that surgery could provide a 65% improvement in the scar left by the burn. BX 6 at 21. By letter dated March 25, 1997, Respondent wrote Mrs. Wilson reporting the results of Dr. Massac's examination and stating that "[w]ith the above information from a specialist, I now feel that the facts are at hand to formulate a claim to the cruise line." BX 6 at 60.
16. By letter dated April 25, 1997, Respondent forwarded a copy of Dr. Massac's bill to Mrs. Wilson for payment. BX 6 at 59. Mrs. Wilson and her husband paid the $600 bill after they received it. 1 Tr. 42-43.
17. Respondent took no other substantive action on the Wilson case until June 12, 1997. BX 6 at 16.
18. By letter dated June 12, 1997, Respondent wrote the cruise line to provide a "notice of representation" of Mrs. Wilson in connection with the injury she sustained aboard the ship. This notice did not make a demand for payment or attach any of the relevant medical report or bills. BX 6 at 16.
19. By letter dated June 30, 1997, a risk management adjuster for the cruise line wrote to Respondent acknowledging receipt of his June 12 letter and requesting Respondent to provide to the cruise line, for evaluation "your theory of liability, any medical reports (including diagnosis), itemized receipts, treatments and settlement demand." BX 6 at 58. That letter further stated:
Our ticket agreement is a legally binding contract. Page two (2), section six (6), of this agreement details promise to bring suit, if at all, only in Miami, Florida, USA. Accordingly, the cruise line will seek to recover damages for attorneys fees expended for breach of this forum selection clause, where suit is filed, if at all, in other than Miami, Florida, as agreed. If ...