On Respondent's Exception to the Report and Recommendation of the Board on Professional Responsibility. (BDN-276-97).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before FARRELL and RUIZ, Associate Judges, and PRYOR, Senior Judge
Respondent, Harry T. Spikes, has filed exceptions to the report of the Board on Professional Responsibility ("the Board") finding that he violated Rules 3.1 and 8.4 (d) of the District of Columbia Rules of Professional Conduct by filing a frivolous defamation claim, based on a privileged communication to Bar Counsel alleging attorney misconduct and other similarly privileged statements. The Board recommends that respondent should be suspended from the practice of law for thirty days. We hold that the record supports the Board's finding that respondent violated Rule 3.1 by bringing a defamation suit in the face of consistent and clear case law holding that an absolute privilege attaches to complaints made to Bar Counsel. Respondent's persistence in maintaining this frivolous suit, including an appeal, also "seriously interfere[d] with the administration of justice," in violation of Rule 8.4 (d). In light of these ethical violations and respondent's disciplinary history, we adopt the Board's recommended sanction and order respondent suspended from the practice of law for thirty days.
Respondent has been licensed to practice law in the District of Columbia since 1983. In the Spring of 1997, he represented the plaintiff before the United States District Court for the District of Columbia in the case of Byars v. District of Columbia, et. al.,U.S. D.C. Civil Action No. 96-1129 ("the Byars case"). Mr. Byars was then an inmate at the Lorton Correctional Institution who brought suit against the District of Columbia claiming that he had been assaulted on various occasions by both inmates and guards at the correctional facility.*fn1 The gravamen of the complaint was that the alleged beatings and stabbings had left Mr. Byars paralyzed, and confined to a wheelchair. The then-Office of Corporation Counsel -- now the Office of Attorney General for the District of Columbia -- defended the suit on behalf of the District of Columbia; Assistant Corporation Counsel John McCabe was the primary attorney working on the Byars case for the District. On June 5, 1997, Martin L. Grossman, then-Deputy Corporation Counsel, wrote a letter to the Office of Bar Counsel concerning respondent's behavior in the Byars case. Mr. Grossman made it clear that the purpose of his letter was to fulfill his duties under Rule 8.3 to report the unethical behavior of other attorneys. In the letter, Mr. Grossman detailed a conversation between respondent and Dr. Eliza Taylor on March 5, 1997, as reported to Mr. McCabe by Dr. Taylor.
Dr. Taylor, the medical director at the Lorton facility, had helped secure a room for the deposition of Mr. Byars in connection with his suit against the District. According to Mr. Grossman's letter, Dr. Taylor stated, in the presence of respondent and Mr. McCabe, that she had observed Mr. Byars moving his legs and standing, which obviously undermined his allegations that the claimed abuse had left him paralyzed and confined to a wheelchair. Mr. Grossman further stated in the letter that Dr. Taylor later reported to Mr. McCabe that:
[respondent] told Dr. Taylor the following: that she did not have to express her view regarding Mr. Byars' injuries, that he was hoping to get a large judgment from the District of Columbia in the lawsuit, and that she could be a part of that judgment, and could retire comfortably.
Mr. Grossman's letter also reported that respondent had a conflict of interest in the Byars case, see supra note1, and that respondent had been delinquent in paying his bar dues. In addition to the letter to Bar Counsel, Mr. Grossman also mailed a similar letter to the United States Attorney on the same day.
It appears that in the course of defending the Byars case, Mr. McCabe tried for some time -- before Mr. Grossman sent the letters -- to secure an affidavit from Dr. Taylor that confirmed her allegations that respondent was trying to unlawfully influence her potential testimony concerning Mr. Byars's injuries. It is undisputed that Mr. McCabe prepared and transmitted a proposed affidavit to Dr. Taylor for her signature. For reasons which are not found in the record, Dr. Taylor never signed the affidavit. Dr. Taylor's deposition was taken on June 30, 1997, as part of Byars's federal lawsuit. Although the record does not contain the transcript of this deposition, there are a few short quotes in various pleadings filed by respondent in the defamation lawsuit he filed against the District (discussed infra) which tend to support Mr. McCabe's representations that Dr. Taylor believed respondent was trying to bribe her, and that she informed Mr. McCabe of this fact.*fn2
On November 28, 1997, respondent filed suit in the United States District Court against Messrs. Grossman and McCabe, as well as various other members of the Office of Corporation Counsel, and the District of Columbia. The suit alleged that the defendants had conspired to defame respondent, and had thereby deprived him of his civil rights, in violation of 42 U.S.C. §§ 1981, 1983 and 1985 (2000). In his complaint, respondent claimed that the same defamatory statement was published on four occasions: (1) in the draft affidavit which Mr. McCabe sent to Dr. Taylor; (2) in a memorandum filed by the Office of Corporation Counsel on April 1, 1997 in support of a motion for a continuance in the Byars case; (3) in the letter mailed to Bar Counsel on June 5, 1997; and (4) in the letter of the same date mailed to the United States Attorney. The suit sought damages in the amount of $5,000,000, as well as punitive damages in the same amount.*fn3
The U.S. District Court dismissed respondent's complaint for failure to state a claim, noting that the allegedly defamatory statements in the continuance motion and the draft affidavit were privileged as they were made in the context of a judicial proceeding, and that a "privilege applied to [the defendants'] referral of the matter to the D.C. Bar." The court concluded that once the defamation claims were dismissed, the conspiracy claims and the civil rights claims also would fail because they were premised on the underlying allegations of defamation. The United States Court of Appeals for District of Columbia summarily affirmed in an unpublished opinion, holding that "[t]he merits of the parties' positions are so clear as to warrant summary affirmance."
Respondent was charged by Bar Counsel with violating D.C. Bar Rule XI, § 19 (a), and Rules 3.1 and 8.4 (d) of the District of Columbia Rules of Professional Conduct.*fn4 The Board determined that Bar Rule XI, § 19 (a), which grants a privilege to complaints made to Bar Counsel, does not provide an independent basis for attorney discipline, but that the rule provides a standard to evaluate respondent's conduct under Rule 3.1 of the professional conduct rules, which makes it a violation to file a frivolous claim.*fn5 The Board also found that respondent's frivolous filing had burdened the ...