On Report and Recommendation of the Board on Professional Responsibility (BDN 148-00)
Before WASHINGTON, Chief Judge,*fn1 RUIZ, Associate Judge, and KING, Senior Judge.
The Board on Professional Responsibility ("Board") has recommended that William Bingham be informally admonished for violating several Rules of Professional Conduct in connection with his representation of an estate. Bar Counsel noted an exception to the Board's recommendation, arguing that Bingham should be publicly censured and ordered to pay full restitution to his clients in the amount of $250.00 plus interest.*fn2 We do not adopt the Board's recommendation, and agree with Bar Counsel that Bingham should be required to make full restitution. Therefore, we conclude that Bingham, shall be publicly censured and placed on probation for three years with the condition that he pay full restitution to his clients plus interest.
The facts concerning Bingham's misconduct were essentially undisputed. In June 1996, Shirley Langley died. Prior to her death, she had executed a will which had been prepared by William Bingham. Her assets included a house, a vehicle, and funds in a bank account. Langley had four children -- Milford Williams, Marcus Williams, Crystal Williams, and Millicent Fox.*fn3 In the will, Milford Williams was appointed personal representative of the estate and he retained Bingham to provide legal assistance in probating the estate. A retainer agreement was executed which provided for an attorney's fee of $250.00.
In November 1996, Bingham filed with the probate court a copy of the will and a petition for probate because Langley's original will could not be located. A deputy clerk, however, informed Bingham that he would have to file a complaint and a new petition in order to proceed to probate.*fn4
In August and September 1997, Bingham had three of the siblings -- Marcus, Crystal, and Millicent -- sign affidavits consenting to the probate of a lost will. He also had the two attesting witnesses sign affidavits of due execution to authenticate the copy of the will. In December 1997, Bingham wrote to the company holding the mortgage on the decedent's home and prevented foreclosure. The hearing committee, and the Board, found that Bingham took no further action to complete the probate of the estate after 1998.
Prior to his being retained by Milford Williams, Bingham was diagnosed with a benign, but inoperable brain tumor. In April 1998, during the period of his representation of the estate, Bingham was involved in an automobile accident which caused him to injure his neck and back. As a result of this accident and his other health problems, Bingham temporarily suspended his practice of law. Some time in 1999, he resumed the practice of law on a limited basis, but was still affected by continuing health problems. Some time thereafter, Bingham stopped practicing law because of his maladies, but continued his representation of the estate.*fn5
In December 1998, Crystal Williams sent a certified letter to Bingham inquiring into the status of the probate matter and requesting an appointment to meet with him. Bingham met with Crystal Williams some time in January 1999, and requested additional time to complete the matter. In April 2000, Crystal Williams, on behalf of herself and her siblings, filed a complaint with Bar Counsel.
The hearing committee found that Bingham (1) did not provide competent representation when he failed to give continuing attention to the needs of the estate, in violation of Rule 1.1 (a); (2) failed to serve the estate with skill and care when he failed to properly complete the petition for probate, in violation of Rule 1.1 (b); (3) failed to represent the estate zealously and diligently when he did not file certain documents to complete the probate of the estate, did not return to court after filing a defective petition for probate, and did not complete probate after four years of undertaking that task, in violation of Rule 1.3 (a); (4) failed to act with reasonable promptness when he did not complete the probate of the estate within a four-year period, in violation of Rule 1.3 (c); failed to withdraw his representation of the estate after acknowledging his incapacity and admitting that his impairment was "severe, continuous, and debilitating," in violation of Rule 1.16 (a)(2).*fn6 The hearing committee recommended that respondent be informally admonished and that this court order partial restitution in the amount of $175.00 plus interest.*fn7
The Board concurred with the hearing committee's recommended sanction of an informal admonition, but disagreed with its restitution recommendation on the ground that D.C. Bar R. XI, § 3 (b) permits the Board to order restitution only as a condition of probation or reinstatement. In footnote 6 of its report and recommendation, the Board noted that it would recommend restitution of the entire $250.00 plus interest if restitution could be imposed as part of the sanction of informal admonition. The Board also noted that since Bingham's maladies adversely impacted his ability to represent the Williams siblings, and since "there [was] no evidence of prior discipline, prejudice to the client (other than unnecessary delay in completion of the . . . estate), dishonest conduct, or violation of other disciplinary rules beyond the cluster of neglect violation arising out of the failure to properly probate the . . . estate[,]" Bingham should be informally admonished.
The Board did not make a restitution recommendation in this case because it believed that D.C. Bar R. XI, § 3 (b) does not provide authority to order restitution when the sanction does not involve probation. Bar Counsel contends that restitution could have been ordered as part of Bingham's sanction because in In re (Durward) Taylor, 511 A.2d 386 (D.C. 1986),this court ordered restitution in conjunction with a Board reprimand and not as a condition of probation. Bar Counsel's reliance on Taylor, however, is misplaced. When we decided Taylor, Rule XI, § 3 read in pertinent part: "The Court may also require an attorney . . . to make restitution either to persons financially injured by the lawyer's conduct or to the Clients' Security Trust Fund." D.C. Bar R. XI, § 3 (1986). In 1989, however, Rule XI, § 3 was amended to provide that "the Court or the Board may require an attorney to make restitution either to persons financially injured by the attorney's conduct or to the Client's Security Trust Fund . . ., or both, as a condition of probation or of reinstatement . . . ." (Emphasis added.) D.C. Bar R. XI, § 3 (b) (1989). Because current Rule XI, § 3(b) contains ...