The opinion of the court was delivered by: Wagner, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (Bar Docket No. 169-98).
Before: SCHWELB, WAGNER,*fn1 and REID, Associate Judges.
Concurring opinion by Associate Judge SCHWELB at page 31.
The Board on Professional Responsibility (the Board) has recommended that respondent, Paris A. Artis, be suspended from the practice of law in the District of Columbia for thirty days with his reinstatement conditioned upon his compliance with Bar Counsel's subpoena duces tecum and an order of this court enforcing it. The proposed discipline is based on the report and recommendation of a Hearing Committee that respondent had violated D.C. R. Prof. Conduct 8.4(d) (conduct that seriously interferes with the administration of justice) and D.C. Bar R. XI, § 2 (b)(3) (failure to comply with an order of the Board or the D.C. Court of Appeals). A majority of the Board concurred in the Hearing Committee's findings that respondent violated both rules, although it rejected one of the grounds upon which it appeared that the Hearing Committee's Rule 8.4(d) violation was based.*fn2 The Board concurred in the Hearing Committee's recommendation of sanction with the exceptions of a requirement that respondent answer Bar Counsel's interrogatories and that respondent prove fitness as a condition of reinstatement. The Board, through its Executive Attorney, filed a brief in this court in support of its report and recommendation. Bar Counsel filed a brief supporting, in part, the Board's recommendation. However, Bar Counsel urges, contrary to the Board's recommendation, that conditions of reinstatement also include responses to Bar Counsel's questions and a showing of fitness to practice law. Bar Counsel also challenges some of the Board's conclusions of law. Respondent did not file a brief in this court. The Board concluded that reinstatement conditioned on respondent's responses to Bar Counsel's subpoena and the order enforcing it would be appropriate under the circumstances and that respondent's conduct did not rise to the level of egregiousness warranting a fitness requirement under our case law. We agree with the Board's recommended sanction and adopt it for the reasons hereinafter stated.
A. Factual and Procedural Background
On April 10, 2000, Bar Counsel filed a Petition Instituting Formal Disciplinary Proceedings and a Specification of Charges against respondent, who was admitted to the District of Columbia Bar on December 17, 1973. The charges alleged violations of D.C. R. Prof. Conduct 8.4(d) and D.C. Bar R. XI, § 2 (b)(3). The violations were based on respondent's failure to respond to written interrogatories propounded by Bar Counsel during a disciplinary investigation and to the Board's order, issued through its vice-chair, compelling responses and his failure to respond to Bar Counsel's subpoena duces tecum and an order of this court requiring compliance.
An evidentiary hearing was held before a Hearing Committee, and respondent appeared pro se and testified on his own behalf. Except as otherwise stated, the facts are undisputed. The evidence showed that respondent represented Roland Butler, the removed personal representative of the Estate of Harold O. Butler, deceased, in a case in the Probate Division of Superior Court, Adm. No. 2897-90. The court referred the case to the AuditorMaster to state an account after removing Roland Butler as personal representative for his failure to file an inventory and first account. Bar Counsel initiated an investigation of respondent after receiving a copy of the Report of the Auditor-Master (the Report) that questioned whether a deed transferring decedent's interest in real property during his lifetime to his children, Roland Butler (the removed personal representative) and British Gary, was a fraudulent conveyance intended to defeat the claims of Harold Butler's creditors.
According to the Report, Harold Butler was a defendant in a civil action for damages that went to trial on July 20, 1989, resulting in a judgment against him in the amount of $12,000. The deed was executed after the trial, but before the final entry of judgment. Respondent notarized the deed, which was not recorded. The Auditor-Master reported that other aspects of the transaction might also warrant action by Bar Counsel, including a second trust held by respondent's company against the decedent's real property that was not recorded until after decedent's death and Ms. Gary's statement that she had not been present when her father executed the deed.*fn3
On April 15, 1998, Bar Counsel notified respondent that the matter had been docketed for formal inquiry, provided him with a copy of the Auditor-Master's report and requested a substantive response to the allegations of misconduct in the report. After not receiving the response by April 29, 1998, Bar Counsel wrote respondent again informing him of his responsibility to comply with the request within five days and that failure to comply might result in a formal charge of failure to cooperate with Bar Counsel. By letter dated April 29, 1998, respondent replied to Bar Counsel's letter, stating that the Auditor-Master's report contained no allegation of misconduct and only a confused question about whether the deed in question represented a fraudulent conveyance. He explained that he did not understand the other "significant questions" raised by the Auditor-Master, since he had informed her that he had notarized the deed for Harold and Roland Butler, both of whom had appeared before him. He also stated that he informed the Auditor-Master that he had no recollection concerning Ms. Gary's signature, but he believed the documents were taken to her by Mr. Roland Butler for signature and that was probably why the deed had not been recorded. Respondent stated further that he was quite appalled that the auditor master made such a "reckless" accusation based upon "questions" by Mr. Butler's successor personal representative, who seemingly relinquished his position after I explained his searching and unknowing inquiries. I am not surprised by such natural suspicions and accusations, but do not choose to practice law defending unfounded queries . . . . If any further response is deemed, please provide me with a detailed statement and specific accusations of misconduct.
On May 19, 1998, Bar Counsel wrote respondent, stating that "the allegations contained in the Report of the Auditor-Master speak for themselves," and that the office was investigating respondent's representation of Roland Butler with respect to his father's estate. Bar Counsel included six written interrogatories, with sub-parts. Bar Counsel also enclosed a subpoena duces tecum seeking all documents related to the mortgage loan and trust against the estate and all retainer agreements, records of compensation, billing records, and copies of checks received as compensation from Harold O. Butler, Roland Butler and/or British Gary. Bar Counsel set a deadline of June 4, 1998, for respondent to answer the interrogatories and request for production of documents. Respondent failed to reply, and on June 10, 1998, Bar Counsel wrote respondent a letter warning him again that failure to respond could result in a formal charge of failure to cooperate.
On June 25, 1998, Bar Counsel filed a motion with the Board on Professional Responsibility, seeking to compel responses. Respondent did not reply to the motion, and the Board, acting through its vice-chair, issued an order requiring respondent, within ten days, to provide substantive answers to each allegation set forth in Bar Counsel's complaint, including the Auditor-Master's report, and to the six sets of questions posed to respondent by Bar Counsel's letter of May 19, 1998. The order further stated that a failure to comply would lead Bar Counsel to "consider whether [his] conduct constitutes, inter alia, conduct that seriously interferes with the administration of justice in violation of Rule 8.4 (d)." Respondent still did not reply, and Bar Counsel initiated enforcement proceedings in this court related to respondent's failure to comply with the subpoena duces tecum. Although personally served with Bar Counsel's motion, respondent filed no response. This court issued an order requiring respondent to comply with the subpoena within ten days of its order.
Respondent testified before the Hearing Committee that he provided to a former Assistant Bar Counsel some documents, including some of the requested materials. However, that assistant testified that the documents respondent provided were related to another proceeding. Respondent also took the position that the allegations made in the Auditor-Master's report, when considered with Bar Counsel's inquiries, raised self-incrimination issues.
B. Reports and Recommendations of the Hearing Committee and the Board
The Hearing Committee found that respondent had violated the two rules as alleged based on all of the conduct charged by Bar Counsel and recommended a thirty-day suspension with reinstatement conditioned on respondent's compliance with Bar Counsel's request for information and production of documents and proof of fitness. Neither Bar Counsel nor respondent filed exceptions to the Hearing Committee's report and recommendation. The Board affirmed the Hearing Committee's findings and conclusions that respondent violated D.C. Bar R. XI, § 2 (b)(3) by failing to respond to orders of the Board and the Court and D.C. R. Prof. Conduct 8.4(d) in that he hampered Bar Counsel's investigation by failing to respond to Bar Counsel's questions and the subpoena duces tecum after being compelled by the Board to do so. The Board rejected the Hearing Committee's conclusion that respondent also violated D.C. R. Prof. Conduct 8.4(d) by failing to provide a substantive response to Bar Counsel's initial letter, having concluded that respondent's letter was sufficient to meet the requirements of a general denial to the allegations in the Auditor-Master's report.*fn4 The Board agreed with the Hearing Committee's recommendation of a thirty-day suspension with reinstatement conditioned on respondent's compliance with the subpoena duces tecum. However, the Board did not concur with the Hearing Committee's recommendation that a showing of fitness be a condition of reinstatement because that would be inconsistent with prior cases. Further, the Board declined to impose as a condition of reinstatement that respondent answer Bar Counsel's initial questions because of respondent's general denial and the overly broad questions, respondent's assertion of privilege with respect to some of the questions, and the expectation that his responses to the subpoena duces tecum would answer some of the questions.*fn5
The Board urges this court to adopt its recommended sanction, particularly given the strong presumption favoring the Board's recommended sanction where, as here, the recommendation is consistent with the sanction imposed for comparable misconduct and is warranted otherwise by the circumstances. Bar Counsel agrees with the Board's conclusions regarding respondent's ethical violations. However, Bar Counsel contends that neither the facts nor the law supports the Board's exclusion of a requirement that respondent reply to Bar Counsel's ...