The opinion of the court was delivered by: Glickman, Associate Judge.
On Report and Recommendation of the Board on Professional Responsibility (Bar Docket Nos. 337-99, 139-01, 372-01 & 428-01)
Before TERRY, REID and GLICKMAN, Associate Judges.
Rozan E. Cater, an attorney who was admitted to the Bar of this Court in 1989, is the respondent in four consolidated disciplinary matters coming to us with a report and recommendation from the Board on Professional Responsibility.*fn1 In the first matter, a closely divided Board would absolve respondent of ethical misconduct in connection with her former secretary's embezzlement of over $47,000 from the estates of two incapacitated adults for whom respondent was the court-appointed guardian and conservator. In the other three matters, the Board has found misconduct in respondent's repeated failures to cooperate with disciplinary investigations by Bar Counsel into ethical complaints against her. The Board accordingly recommends that respondent be suspended from practicing law for ninety days, with reinstatement conditioned on her compliance with Bar Counsel's investigative inquiries and on proof by respondent of her fitness to resume legal practice. Both Bar Counsel and respondent have objected to the Board's report.
With respect to the first matter, we disagree with the Board. We conclude that respondent violated two Rules of Professional Conduct: Rule 5.3 (b), which required her to make "reasonable efforts" to ensure that the conduct of her non-lawyer employee was compatible with her own professional obligations as a lawyer, and Rule 1.1 (a), which required her to provide competent representation to her wards and their estates. As to the three other matters, we agree that respondent violated Rules 8.1 (b) (failure to respond to a lawful demand for information from a disciplinary authority) and 8.4 (d) (serious interference with the administration of justice), and D.C. Bar Rule XI, § 2 (b)(3) (failure to comply with an order of the Board).
We suspend respondent for 180 days, attaching appropriate conditions to her reinstatement. One of those conditions is that respondent will have to prove that she is rehabilitated and fit to resume the practice of law. In the process, we grant the Board's request for clarification of the legal standard to be followed in deciding whether the so-called fitness requirement is warranted. Resolving a disagreement between the Board and Bar Counsel, we approve the "clear standard" proposed by the Board: to justify requiring a suspended attorney to prove fitness as a condition of reinstatement, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law.
The Board majority adopted the Hearing Committees' findings of fact in the four matters now before us in toto. In all material respects, the findings are unobjectionable, and for the most part they are undisputed. With respect to Bar Docket No. ("BDN") 337-99, however, we agree with Bar Counsel that the Hearing Committee made certain findings in this matter -- we shall note them infra -- that are "unsupported by substantial evidence of record." D.C. Bar R. XI, § 9 (g)(1). Our analysis might not be materially different were we to accept these findings, but the point is one worth highlighting for future consideration by Hearing Committees and the Board. The findings in question relate to subjects that were within respondent's exclusive personal knowledge, such as her mental state and the arrangements in her law office, yet the Hearing Committee never heard from respondent, for she chose not to participate in the proceeding.*fn2 In lieu of receiving and evaluating her live testimony under oath, the Committee accepted at face value what respondent had written in defense of her conduct in pre-hearing correspondence with Bar Counsel and a pleading she had filed in Superior Court. This written material was not submitted to the Committee by respondent; it was included in Bar Counsel's hearing exhibits, and Bar Counsel certainly did not vouch for its veracity. Cf. Harris v. United States, 834 A.2d 106, 117 (D.C. 2003) (explaining that a party's submission to a tribunal of documents prepared by another may suggest adoption, if the submission truly manifests an intent to adopt or a belief in the truth of the statements contained in the documents). While hearsay is admissible in attorney disciplinary proceedings, findings of fact require a firmer foundation than a respondent's own uncorroborated, unsworn and uncross-examined assertions. When a respondent attorney has declined to subject herself to examination in the proper manner, at the proper time, before the proper tribunal, the self-serving claims she has made dehors the proceeding cannot be accepted if their credibility has not been established by other means. Any other rule would devalue Hearing Committee fact finding and undermine public confidence in the legitimacy of Bar discipline. In this case, therefore, we conclude that respondent's self-serving written representations did not amount to "substantial evidence of record."
In BDN 337-99, Bar Counsel charged respondent with violating District of Columbia Rules of Professional Conduct 1.1 (a) and 5.3 (b) by failing to act competently and failing adequately to supervise a non-lawyer assistant in connection with respondent's service as court-appointed conservator of the estates of Charlie Mae Morton and Mary Virginia Hinton, two adult wards of the District of Columbia Superior Court.*fn3 The charges relate to two bank accounts that respondent opened, one at Riggs National Bank on May 4, 1995, and the other at First Union National Bank on May 31, 1996, to hold funds belonging to Ms. Morton and Ms. Hinton, respectively. Respondent was the only authorized signatory on the accounts. She drew upon them from time to time to pay her wards' living expenses. Unbeknownst to respondent, however, an employee in her office made a number of unauthorized withdrawals from the two accounts.
Over a nine-month period, from September 1995 to June 1996, respondent's secretary, Lena Summers, forged respondent's signature on thirty-four checks drawn on the Morton Estate account and embezzled over $42,000. One of the checks was made out to Nordstrom's; the rest were payable to Ms. Summers herself. In June 1996, Ms. Summers also forged respondent's signature on two checks drawn on the Hinton Estate account. One of the checks, in the amount of $3,000, was made payable to Charlie Mae Morton and was deposited in Ms. Morton's conservatorship account. The payee on the other check, which was for $2,150, was Lena Summers.
Both Riggs and First Union sent respondent monthly bank statements detailing the activity in the Morton and Hinton Estate accounts. These statements included copies of the checks drawn on the accounts and presented to the bank in the preceding month. Had respondent looked at the bank statements, she immediately would have discovered her secretary's defalcations.
Unfortunately, respondent did not look at the statements. She had delegated the task of reviewing the monthly bank statements for the Morton and Hinton Estates, and the other estates she administered as conservator, to Ms. Summers herself. For each estate bank account, it was Ms. Summers's responsibility to log in the monthly statements when they arrived in respondent's office, staple the enclosed checks to each statement, review each statement for discrepancies, verify the account balances, and file the statements. Evidently trusting her secretary to perform all these tasks honestly and accurately, respondent did not review the bank statements or otherwise check her secretary's work.
Respondent also assigned to her secretary the task of preparing the annual accountings that she had to file in Superior Court for the estates under her supervision. These accountings were to be based on the bank statements for estate accounts and other original financial records. Ms. Summers drafted a First Account for Ms. Morton's Estate at some point in mid-1996. This report covered the period May 3, 1995 to May 3, 1996, during which time Ms. Summers had negotiated all but three of the thirty-four forged checks drawn on the Morton Estate account. Although the First Account is not included in the record, there is no dispute that it did not disclose the unauthorized withdrawals made by Ms. Summers. In this instance too, as the Board found, respondent "appears not to have reviewed the primary-source financial documents -- the monthly account statements -- herself, but instead relied on Ms. Summers's (putative) distillations of the information in the statements." Not having checked it, respondent approved her secretary's dishonest work product and (allegedly) instructed her to file the First Account with the Superior Court. Ms. Summers evidently disobeyed that alleged instruction, for the First Account was not filed.
Relying on respondent's subsequent written explanations to the court and Bar Counsel of what went wrong, the Hearing Committee found that she "had observed her employee's work and competence for over a year, . . . had reason to trust her to do a good, and honest, job, [and] . . . did the training necessary to equip Ms. Summers to do the work she was assigned." Although respondent did make such claims (without, it is worth noting, elaborating on what they meant), they were entirely unsubstantiated. For the reasons previously stated, we reject these findings as unsupported by substantial evidence of record. The most that can be said is that Bar Counsel did not prove the contrary, that respondent had grounds to distrust Ms. Summers or failed to train her properly.
The Hearing Committee also credited respondent's written assertion that she kept the blank checks for her estate bank accounts in a locked safe in her office. This is another instance in which we think the Committee's finding is not supported by substantial evidence of record. More to the point, however, respondent admittedly knew, and yet professedly was not concerned, that the checkbooks were accessible to Ms. Summers.*fn4
In early September 1996, Ms. Summers vanished. Respondent claimed that she filed a missing person report with the police on or about September 6 (but this claim is not corroborated; the putative report is not included in the record). Her secretary's disappearance did not cause respondent to suspect Ms. Summers of any wrongdoing, however, nor did it lead respondent to examine the bank statements that Ms. Summers had maintained.
Ms. Morton died on September 13, 1996. For more than a year afterward, respondent remained unaware of the missing and forged checks and the unauthorized withdrawals from the conservatorship accounts.*fn5 In late September 1997, the Superior Court notified respondent that the
First, Second, and Final Accountings for the Morton Estate had not been filed and directed her to file them by October 3. This did not happen, and respondent received a second notification from the court in December 1997. In response to the notifications, respondent undertook to prepare the required accountings. For the first time, she reviewed the bank statements from Riggs. Seeing disbursements she did not recognize, she ordered copies of the checks from the bank (the forged checks evidently were missing from respondent's files). On December 24, 1997, respondent received the checks and at last discovered that Ms. Summers had forged her signature on them and embezzled Ms. Morton's funds.*fn6
Respondent filed First, Second, and Final Accounts for the Morton Estate in January 1998. She reported the forgeries and unauthorized withdrawals by her secretary. In response, Superior Court Judge Cheryl M. Long ordered respondent to appear and show cause why she should not be removed as conservator and why she should not be held liable to the Estate. Judge Long noted that since respondent "was charged with the responsibility of safeguarding the Ward's assets," she "personally should have noticed that checks were missing and used by someone other than herself." As the conservator and a fiduciary, Judge Long continued, respondent "should have had total control over the security of any blank checks, and should have taken action immediately upon seeing in any one bank statement that there were cancelled checks not written by her." Ultimately, after receiving respondent's written answer to the show cause order and holding hearings, Judge Long entered judgment in the amount of $42,003.19, plus interest, against respondent and her surety. The surety paid this judgment to the personal representative of the Morton Estate in August 1999.*fn7 Meanwhile, respondent applied to the court for compensation from the Estate for services rendered in the amount of $57,614. In a separate order, Judge Long denied this request in its entirety because of "the extraordinary scenario of [respondent's] lack of supervision" of her employee, Ms. Summers. Respondent's failure to notice Ms. Summers's forgeries reflected, Judge Long concluded, "significant inattention to the business of this estate."
On March 13, 2000, more than two years after she discovered the thefts from the Morton Estate, respondent notified a Probate Division auditor that Ms. Summers had forged her signature on two checks drawn on the Hinton Estate account. There is no explanation in the record for respondent's prolonged delay in reporting these forgeries and unauthorized withdrawals. The record also does not disclose whether respondent or her surety has reimbursed the Hinton Estate for its $5,150 loss.
B. Bar Docket Nos. 139-01, 372-01 and 428-01
In each of three matters, Bar Counsel charged respondent with violating District of Columbia Rules of Professional Conduct 8.1 (b) and 8.4 (d) and D.C. Bar Rule XI, § 2 (b)(3) by failing to cooperate with disciplinary investigations. The undisputed facts are as follows.
On March 30, 2001, Superior Court Judge Kaye Christian found that respondent had breached her fiduciary duties as court-appointed guardian and conservator for Ms. Hinton. Judge Christian removed respondent from the Probate Division's fiduciary lists and panels and referred her to Bar Counsel. The referral, docketed as BDN 139-01, alleged acts that may constitute misconduct under the Rules. On April 11, 2001, Bar Counsel sent the complaint of misconduct to respondent at her address listed with the District of Columbia Bar, requesting a response by April 23, 2001. On that date, respondent sent a facsimile informing Bar Counsel of her new mailing address*fn8 and requesting a thirty-day extension of time in which to respond to the complaint. The following day, Bar Counsel sent a letter to respondent at her new address by facsimile and by first-class mail, agreeing to her request for an extension of time until May 23, 2001, to respond to the complaint.
Respondent did not submit her response by May 23, 2001. On May 31, 2001, Bar Counsel sent another letter to respondent at her new address, requesting her to respond to the complaint by June 5, 2001. No response was received, and Bar Counsel's letter was not returned. On July 26, 2001, Bar Counsel filed a motion with the Board on Professional Responsibility to compel a response to the complaint. A copy of the motion was mailed to respondent at her new address. No response was filed. On August 30, 2001, the Board issued an order compelling respondent to answer the complaint within ten days. The order was mailed to respondent at her new address. No response was received and the order was not returned.
As of the first scheduled hearing date, February 26, 2002, respondent still had not responded to the complaint or the Board's order. Respondent appeared at the hearing, however, and stated that she was not prepared because she had been through "an extensive amount of family hardship," including her own illness, that of both her parents, and the recent death of her father. The hearing was continued to March 28, 2002, at which time respondent signed a joint stipulation of fact regarding the history of her failure to respond to Bar Counsel's correspondence. The focus of the proceeding having shifted to respondent's non-cooperation with the investigation, the underlying complaint of ethical misconduct lodged by Judge Christian was not addressed at the hearing.
2. BDN 372-01 and BDN 428-01
On October 18, 2001, a member of the Bar of this Court filed another complaint of ethical misconduct against respondent. Bar Counsel docketed the complaint as BDN 372-01 and sent it to respondent at her new address on November 1, 2001, requesting a response by November 13, 2001. There was no response, nor was Bar Counsel's letter returned. Bar Counsel sent a second letter on November 28, 2001, requesting a response by December 3, 2001. Again there was no response. On December 14, 2001, Bar Counsel filed a motion to compel a response with the Board, mailing a copy of the motion to respondent. Respondent did not answer the motion. On February 20, 2002, the Board issued an order compelling respondent to respond to the complaint within ten days. The order was mailed to respondent at her new address. Bar Counsel did not receive a response.
Meanwhile, on December 6, 2001, another member of the Bar of this Court filed an ethical complaint against respondent, which was docketed as BDN 428-01. After three mailings to respondent elicited no response, Bar Counsel again obtained an order from the Board directing respondent to respond to the complaint within ten days.
As she left the hearing in BDN 139-01 on March 28, 2002, respondent was personally served with the complaints, Board orders and other documents in BDN 372-01 and 428-01. Bar Counsel still received no answer from respondent. Thereafter, on August 1, 2002, respondent was personally served with the formal documents charging her with failing to cooperate in the two matters, which were consolidated. Respondent did not answer ...