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In re Thyden

June 16, 2005

IN RE JOHN W. THYDEN, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA (BAR REGISTRATION NO. 153908)



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

On Exception of Respondent to Report and Recommendation of the Board on Professional Responsibility (BDN No. 257-92)

Argued November 19, 2002

Before FARRELL, RUIZ and REID, Associate Judges.

This disciplinary case comes to the court on exception by respondent, John W. Thyden, a member of the District of Columbia Bar, to the Report and Recommendation of the Board on Professional Responsibility. The disciplinary charges stem from Thyden's representation of clients in bankruptcy proceedings in Virginia. Thyden is also a member of the Bar of the Commonwealth of Virginia, which, after investigation of charges based on the same representation, decided to dismiss the charges with terms requiring him to complete an ethics course in addition to the Virginia continuing legal education requirements. After conducting its own investigation and hearing, the District of Columbia Board on Professional Responsibility recommends that Thyden be suspended from practicing law in the District for thirty days. Thyden contends that the same disposition should obtain in this proceeding as in Virginia, and raises a number of challenges based on delay, the procedures followed by the Hearing Committee, and the evidentiary sufficiency of the findings. We see no merit in any of these claims and adopt the Board's recommendation.

I. The Disciplinary Proceedings

The charges arose from respondent's representation of unsecured creditors between October 1990 and April 1992, in a proceeding in the United States Bankruptcy Court for the Eastern District of Virginia. A disciplinary matter was commenced by the Virginia State Bar in May, 1992. A complaint was also made to D.C. Bar Counsel in June of 1992, but, at respondent's request, the proceeding in the District of Columbia was deferred pending resolution of the charges in Virginia.

In March 1998, the Virginia State Bar issued its determination (through a Subcommittee of the Fifth District Committee), finding that respondent had violated provisions of Virginia Disciplinary Rule 6-101 (c) and (d) (competence and promptness) for failing to maintain his client reasonably informed or conveying an offer of settlement, but agreeing to dismiss the charges, "with terms." The terms imposed were completion of six hours of continuing legal education in the area of ethics, in addition to the mandatory continuing legal education hours required to maintain a license to practice law in the Commonwealth of Virginia. If the terms were not satisfactorily met, respondent would receive a private reprimand.

Respondent notified D.C. Bar Counsel in June 1998, that the Virginia State Bar had dismissed its disciplinary proceedings, and asked that the D.C. proceeding be treated as a reciprocal discipline case and similarly dismissed. Bar Counsel disagreed and suggested that respondent file his request directly with the court, noting, however, that Bar Counsel would oppose the request. Instead, respondent directed his request to the Board, which notified respondent that it did not agree with the substance of his request because the Virginia dismissal was not "discipline" within the meaning of D.C. Bar Rule XI, § 11 (c). Moreover, the Board considered that it did not have jurisdiction to make a recommendation to the court because the matter had not been referred to the Board by the court for its recommendation pursuant to Rule XI, § 11 (d), and again invited respondent to file a copy of Virginia's order of dismissal and renew his request directly with the court. In the meantime, Bar Counsel had filed a specification of charges charging respondent with violations of the disciplinary rules of the Bar of the District of Columbia Court of Appeals based on respondent's dishonest assertion that he represented a party, without having obtained that party's consent; failure to communicate with his client and keep the client reasonably informed on the matters that were the subject of the representation; failure to inform his client of a settlement offer; and filing of numerous piecemeal and delayed pleadings in the bankruptcy action which seriously interfered with the administration of justice.*fn1

A hearing was conducted on January 27, 1999.*fn2 Respondent filed copies of the Virginia materials with this court on February 4, 1999, after the evidentiary hearing had concluded, and requested that the proceeding be treated as a reciprocal discipline. The court denied the request. See In re Thyden, No. 99-BG-143 (Order of Mar. 3, 1999). On April 13, 2001, the Hearing Committee issued its report, concluding that respondent violated D.C. Rules 1.4 (a), (b) and (c) by failing to keep his client reasonably informed of the litigation generally and of an offer of settlement in particular, as well as Rule 8.4 (d) by burdening the administration of justice, but that he did not violate Rule 8.4 (c) (dishonest conduct) by falsely holding himself out as representing a client without consent. The Committee recommended a thirty-day suspension. Bar Counsel agreed with the Committee's findings, but respondent filed exceptions. The matter proceeded to the Board on Professional Responsibility, which concluded that the findings of fact in the Hearing Committee's report were supported by substantial evidence in the record and also recommended a thirty-day suspension.*fn3 The matter is before the court on respondent's exception to the Board's findings and recommendation.

In reaching its conclusions, the Board relied on the following findings of fact: On April 27, 1987, Dr. Richard P. Suter, through his professional corporation ("Suter PC"), paid $9,000 to Case Limited Partnership, at that time owner of the Warrenton-Fauquier Airport in Fauquier County, Virginia, for an airplane hangar to be built for his use. On March 31, 1988, Case Limited Partnership (the "Debtor") filed a Chapter 11 bankruptcy proceeding in the U.S. Bankruptcy Court for the Eastern District of Virginia. In November 1988, Dr. Suter filed a proof of claim in the bankruptcy case, which was prepared for him (although not signed) by his attorneys, Leo Scolforo and William Baker.

Main Street Management ("Main Street") also filed a claim, as a secured creditor of the Debtor by virtue of two perfected and recorded deeds of trust dated December 31, 1986. In a settlement reached in early December of 1988 and approved by the Bankruptcy Court, the Debtor acknowledged the validity of Main Street's secured claim. After the bankruptcy was converted to a Chapter 7 proceeding in June of 1989, the Bankruptcy Trustee, on behalf of the Debtor, entered into a second settlement with Main Street consenting to the validity of the deeds of trust. Respondent contends that both settlements were fraudulent, based on various theories, including conflict of interest and failure to give notice of the settlement to other creditors of the Debtor.

Respondent, who represented thirteen individual limited partners of the Debtor, filed an adversary proceeding on their behalf in December of 1989, to determine the validity and priority of liens. That proceeding was dismissed by the Bankruptcy Court in an order entered June 5, 1990, based on the lack of standing of the limited partners, and estoppel as to the validity of the notes accompanying the deeds of trust. Respondent filed a motion for reconsideration of the dismissal of the adversary proceeding and an appeal to the United States District Court for the Eastern District of Virginia. Both were unsuccessful.

After the limited partners' action was dismissed in 1990, respondent, on reviewing the court file in the bankruptcy matter, discovered Dr. Suter's proof of claim against the Debtor. Respondent called Dr. Suter to inquire about representing him in the bankruptcy matter, and Dr. Suter referred respondent to one of his lawyers, William Baker. When contacted by respondent, Mr. Baker advised respondent that the decision was Dr. Suter's. Respondent maintains that from these two conversations he understood that he was retained by Dr. Suter to prosecute his claim in the bankruptcy proceeding on a contingency basis. Respondent did not meet with Dr. Suter, nor did he have a written retainer agreement with Dr. Suter. In fact, he did not speak to Dr. Suter again until 1992.

During the period between respondent's initial contact with Dr. Suter in 1990 and his formal withdrawal before the Bankruptcy Court from his representation in 1992, respondent filed numerous pleadings with the Bankruptcy Court as well as the District Court, purportedly on behalf of Dr. Suter.

In October 1990, respondent filed an adversary proceeding on behalf of Dr. Suter in the Bankruptcy Court, alleging that Main Street was not a secured creditor of the Debtor and that Dr. Suter had no notice of the deeds of trust Main Street claimed to hold at the time he paid his funds to the Debtor. Respondent did not send a copy of the pleading to Dr. Suter or to either of his attorneys (Messrs. Baker and Scolforo). Main Street moved to have the adversary proceeding dismissed, and sought sanctions against respondent and his client on the theory that Dr. Suter's adversary proceeding was duplicative of, and precluded by, the proceeding brought on behalf of the limited partners that had been dismissed by the court. Eventually, the Bankruptcy Court dismissed both Dr. Suter's adversary proceeding, based on collateral estoppel, as well as the motion for reconsideration of the dismissal that respondent subsequently filed.

On January 29, 1991, respondent's partner sent a bill to Dr. Suter in the amount of $115.00 for charges for a process server and a filing fee. There was no charge for legal services. Dr. Suter did not respond to the bill. On March 7, 1991, respondent's partner sent a reminder letter to Dr. Suter about the outstanding bill. Dr. Suter responded that he did not know of any work done on his behalf and asked for information.*fn4

On July 24, 1991, respondent filed a motion to dismiss the bankruptcy case for lack of jurisdiction on behalf of Suter PC, on the ground that the general partner of the Debtor had lost its status as a Virginia corporation in September 1981, and had not been reinstated. The Bankruptcy Court denied this motion, although there was no dispute that the fact that was alleged by respondent was correct. At the oral argument on the motion, Main Street moved again for sanctions. On November 13, 1991, the Bankruptcy Court awarded sanctions against Suter PC and respondent for filing pleadings for the improper purpose of causing unnecessary delay. Respondent filed a timely notice of appeal from the sanction award.

As of late 1991, respondent had not informed Dr. Suter of any of the above proceedings, nor of the sanction that had been imposed on his professional corporation. Dr. Suter became aware of them only when the president of Main Street contacted Dr. Suter in late February of 1992, to ask why Dr. Suter had sued him. On February 26, 1992, Dr. Suter wrote respondent to "categorically stipulate that [respondent] do[es] not represent [him] or any of [his] business interests, including [his] professional corporation, in any matters at this time," and to remind respondent that he had refused to pay the invoice a year earlier. At Dr. Suter's request, his attorney, Mr. Scolforo, called H. Jason Gold, the attorney for Main Street, to request a copy of the record and ...


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