On Report and Recommendation of the Board on Professional Responsibility. (BDN 037-01).
Before Terry, Associate Judge, and Belson and Nebeker, Senior Judges.
Submitted December 3, 2004
On December 14, 2000, we suspended petitioner, David D. Reynolds, from practicing law for a period of six months with the requirement that he demonstrate his fitness to resume the practice of law as a prerequisite to reinstatement. In re Reynolds, 763 A.2d 713 (D.C. 2000). Before us now is petitioner's request for reinstatement. See D.C. Bar R. XI, § 16 (d) (2003). A hearing was conducted before a Hearing Committee which recommended to the Board on Professional Responsibility that the petition be denied. The Board in turn recommends that this court deny the petition because petitioner has not demonstrated by clear and convincing evidence that he is fit to resume practicing law. We agree with the Board and therefore deny his petition for reinstatement. See id. § 16 (f).
To gain reinstatement, petitioner must establish by clear and convincing evidence that
(1) he has the "moral qualifications, competency, and learning in law required for readmission," and (2) his resumption of the practice of law "will not be detrimental to the integrity and standing of the Bar, or the administration of justice, or subversive to the public interest." D.C. Bar R. XI, § 16 (d). We consider these factors in light of the criteria set forth in In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985): (1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline; (4) the attorney's present character; and (5) the attorney's present qualifications and competence to practice law. Neither Bar Counsel nor petitioner filed objections or exceptions to the Board's report. "In such circumstances our review of the Board's recommendation is 'especially deferential.'" In re Patkus, 841 A.2d 1268, 1268 (D.C. 2004) (citing In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997)).
We note that although the burden is on petitioner to demonstrate by clear and convincing evidence that he has satisfied the Roundtree factors, he did not produce any witnesses or offer any exhibits to support his petition. Petitioner was originally disciplined for misdemeanor convictions in Virginia on two counts of driving while intoxicated, one count of eluding a police officer, and one count of hit and run. In re Reynolds, 763 A.2d at 713. His criminal conduct was accompanied by "an extended pattern of alcohol abuse over more than a decade." Id. at 714. Petitioner's conduct was certainly serious and, as the Board notes in its report and recommendation, he has not proven by clear and convincing evidence that he recognizes the seriousness of that conduct. Petitioner's statement in his Post-Hearing Reply Brief that he acknowledges "the seriousness of his offenses in the eyes of the law" falls short of demonstrating that he has a full understanding of the nature and ramifications of his conduct. Moreover, petitioner produced no evidence to suggest that his conduct has improved since he was disciplined. In his petition, he claims that he has not consumed an alcoholic beverage in over three years. However, his claim is belied by the testimony of Dr. Stejskal, a clinical psychologist, who testified that on the one occasion he met with petitioner, he appeared to be intoxicated. Finally, petitioner failed to produce any witnesses to testify to his present character, and failed to provide any documentation of his present qualifications and competence to practice law.
In light of our standard of review, the Board's unchallenged report and recommendation, and the record herein, we conclude that petitioner has failed to establish by clear and convincing evidence his fitness to resume the practice of law. We therefore accept the Board's recommendation for the reasons stated in its report, which is appended to this opinion, and deny the petition for reinstatement.
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This matter comes to the Board on Professional Responsibility ("the Board") from Hearing Committee Number Seven (the "Committee"), which concluded that Petitioner David D. Reynolds' Petition for Reinstatement should be denied. Bar Counsel does not except to the Committee's recommendation. Petitioner excepted, but filed no brief in support of his exceptions. In keeping with Board Rule 13.4(a), there was no oral argument. Upon review of the record, the Board agrees with the Committee and recommends that the Petition for Reinstatement be denied.
On January 30, 2001, Petitioner (who had been suspended with a fitness requirement on December 14, 2000)*fn1 filed a Petition for Reinstatement and the required Restatement Questionnaire. Bar Counsel filed an Answer to the Petition on March 12, 2001. A hearing was scheduled for sometime in April 2001, and a pre-hearing conference took place on March 26, 2001. See Transcript of Proceedings, dated March 26, 2001 ("Tr. I"). At that time, the parties sought a continuance because Bar Counsel had requested, and Petitioner had agreed to undergo, an evaluation by a psychologist, but the evaluation had not taken place; Petitioner had been in a nursing home recovering from an injury on the date the evaluation was to have taken place. Tr. I at 3-4. The Hearing Committee Chair granted the continuance and advised the parties that the hearing would be scheduled to take place within a week or two of receipt of the doctor's report. Tr. I at 7. On May10, 10, 2001, Bar Counsel filed a motion to dismiss the Petition for Reinstatement because Petitioner had not yet made an appointment for the evaluation by the psychologist. Petitioner did not respond to the motion. On June 19, 2001, the Hearing Committee Chair issued an Order requiring Petitioner to make an appointment with the psychologist within 30 days and stating that any failure in this regard would result in dismissal of the petition.
On July 23, 2001, Petitioner requested an additional 30-day extension of time in which to make his appointment with the psychologist. Respondent argued that he had attempted to contact the doctor on several occasions, but, because Petitioner was homeless and had no telephone number at which the doctor could return his calls, they were having difficulty getting in touch. Bar Counsel opposed the motion. On July 25, 2001, the Hearing Committee Chair issued an order requiring Petitioner to make his appointment by August 24, 2001, and to advise Bar Counsel of the date of the appointment by August 31, 2001. The Chair noted that failure to so advise Bar Counsel would result in a recommendation that the Petition be denied.
On August 27, 2001, Petitioner filed notice of his having made an appointment with the psychologist for September 10, 2001. On November 9, 2001, Bar Counsel advised the Hearing Committee of receipt of the doctor's report. On December 6, 2001, the Hearing Committee Chair issued an order setting the hearing for January 14, 2002. Bar Counsel timely served her proposed exhibits.
The hearing took place as scheduled. See Transcript of Proceedings, dated January 14, 2002 ("Tr. II"). [Petitioner] appeared pro se. He did not offer any exhibits. Bar Counsel offered Bar Exhibits ("BX") 1-13 into evidence. [Petitioner] objected to several of the documents on relevance grounds, which objection was denied. Tr II at 161-63. BX 1-13 were then received into evidence. Tr. II at 163. The only witnesses were Petitioner, see Tr. II at 112-160, and William J. Stejskal, Ph.D., who testified out of turn by agreement of the parties, see Tr. II at 6-111. Bar Counsel had called another witness via subpoena, but that witness did not testify because she was the author of a document entered into evidence (BX 11) and her testimony would merely be a reiteration of statements made in the document. See Tr. II at 160. At the time, Petitioner made no objection to the Hearing Committee's consideration of the exhibit without the opportunity for cross-examination. See Tr. II at 162 (Petitioner states his "primary objection was relevance" but articulated no other objections).
The parties filed their post-hearing briefs. The Hearing Committee issued its Report and Recommendation on May 21, 2002. On May 23, 2002, Bar Counsel advised the Board Office that she took no exception to the Hearing Committee's Report. On June 3, 2002, Petitioner advised the Board Office that he took exception to both the Hearing Committee's findings of fact and its recommendation. On June 28, 2002, Petitioner sent to the Board Office a motion for extension of time, seeking an additional week to file his objections to the Hearing Committee Report. Petitioner argued that his briefcase (containing the Hearing Committee Report) was stolen when Petitioner suffered a medical emergency and that he had just requested a new copy of the Report. Bar Counsel did not object to Petitioner's motion. On July 3, 2002, the Board's Executive Attorney advised Petitioner that his request for a week-long extension was granted and that he had until July 8, 2002, to file his brief with the Board. By October 8, 2002, Petitioner had not filed anything with the Board and, as a result, the Board cancelled oral argument, pursuant to Board Rule 13.4(a). The Board has since reviewed the available record and makes the following findings and recommendation.
The Board has reviewed and adopts the Findings of Fact made by the Committee which are set forth here with minor changes. Pursuant to Board Rule 13.7, the Board has included additional findings to provide context and further support of its conclusions.*fn2
1. Petitioner was admitted to the District of Columbia Bar on April 3, 1995, and was assigned Bar Number 446190. BX 5 at 2 (Hearing Committee Report in BDN 506-97, issued on January 19, 2000).
2. Petitioner was convicted on May 1, 1998, in the Circuit Court of Arlington County, Virginia, on two counts of driving while intoxicated ("DWI"), one count of eluding, and one count of hit and run. He was sentenced on June 6, 1998, to 12 months ...