On Report and Recommendation of the Board on Professional Responsibility (BDN 393-00, 63-01, 65-01 and 383-02).
Before SCHWELB, REID, and FISHER, Associate Judges.
The Board on Professional Responsibility has recommended that Charles W. Schoeneman, a member of the Bar of this court, be suspended from practice for four months. The facts upon which this recommendation is based are set forth in its Report and Recommendation, relevant parts of which are attached hereto as an Appendix and made a part hereof. Briefly, Schoeneman neglected the cases of three clients before the United States District Court, misled them and lied to them as to the status of their cases, concealed from them his suspension from practice and, we hold, engaged in the unauthorized practice of law.
The Board's findings of fact, which are essentially identical to the findings of the Hearing Committee, are supported by substantial evidence. Indeed, although Schoeneman places the blame for his problems on Bar Counsel for unfairly causing him to be suspended from practice, see In re Schoeneman, 777 A.2d 259 (D.C. 2001) (Schoeneman I), he does not seriously challenge the Board's findings of historical fact.
With one significant exception, we also adopt the Board's legal analysis. The Board concluded, and we agree, that Schoeneman failed to provide his clients with competent representation, in violation of Rule 1.1 (a) of the Rules of Professional Conduct; that he failed to represent his clients with diligence and zeal, in violation of Rule 1.3 (a); that he failed to seek the lawful objectives of his clients, in violation of Rule 1.3 (b); that he failed to communicate with his clients, in violation of Rule 1.4 (a); that he engaged in dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4 (c); that he engaged in conduct that seriously interfered with the administration of justice, in violation of Rule 8.4 (d), as to two of three clients; and that he failed to protect his clients' interests following the termination of the relationship in violation of Rule 1.16 (d).
The Board concluded, however, that Schoeneman did not engage in the unauthorized practice of law, in violation of Rule 5.5 (a), by counseling his clients and by drafting pleadings while he was under suspension by the United States District Court for the District of Columbia. The practice of law is defined in our Rules, in pertinent part, as the provision of professional legal advice or services where there is a client relationship of trust or reliance. One is presumed to be practicing law when engaging in any of the following conduct on behalf of another:
(A) Preparing any legal document . . .;
(B) Preparing or expressing legal opinions;
(D) Preparing any claims, demands or pleadings of any kind . . . for filing in any court . . .; [and]
(E) Providing advice or counsel as to how any of the activities described in subparagraph (A) through (D) might be done . . . .
D.C. App. R. 49 (b)(2). In our view, the Board's findings, reproduced in the Appendix, establish, contrary to the Board's conclusion, that Schoeneman's conduct violated Rule 49 (b)(2)(E). It may be, as the Board suggests and Bar Counsel apparently concedes, that in some circumstances, e.g., where an attorney's practice has multi-jurisdictional implications, that "when one is considering courts of specialized jurisdiction, such as federal district courts, mere counseling, without filing or appearing on papers, should not be considered the practice of law before the court."*fn1 In this case, however, at the time of his misconduct, Schoeneman had been suspended from practice in every jurisdiction in which he had been admitted. We agree with Bar Counsel that Schoeneman's conduct "constitute[d] the practice of law by a person who [was] not authorized to do so," that "[a]ny contrary conclusion would send the wrong message to suspended lawyers in this jurisdiction," and that "[l]awyers suspended or disbarred by this [c]court would feel empowered to open a legal 'consulting' service which could include legal counseling and the drafting of pleadings for their clients or customers." See In re Banks, 561 A.2d 158, 165 (D.C. 1987) (persons may not hold themselves out as lawyers unless they are licensed members of the Bar).
D.C. Bar R. XI, § 9 (g)(1) provides, in pertinent part, that the court "shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." As we recently stated in In re Soininen, 853 A.2d 712, 723 (D.C. 2004), Rule 9 (g)(1) "endorses the Board's exercise of broad discretion in handing out discipline that is subject only to a general review for abuse in that discretion's exercise." In re Arneja, 790 A.2d 552, 558 (D.C. 2002) (citations omitted). The Board's recommended sanction thus "comes to the court with a strong presumption in favor of its imposition." In re Hallmark, 831 A.2d 366, 371 (D.C. 2003). "'Generally speaking, if the Board's recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed.'" Id. (quoting In re Goffe, 641 A.2d 458, 463-64 (D.C. 1994)).
Although Bar Counsel contends, not altogether unreasonably, that Schoeneman's misconduct was sufficiently serious to warrant a longer suspension,*fn2 we conclude that the discipline recommended by the Board, and its analysis of the factors bearing on the sanction, is reasonable, especially in the light of the injustice caused by Schoeneman's original temporary suspension in this jurisdiction. See Schoeneman I, 777 A.2d at 264-65, id. at 265 (concurring opinion) (unwarranted temporary suspension "has been most unfair to Schoeneman and potentially devastating to his career"). Accordingly, we defer to the recommendation of the Board*fn3 and suspend Schoeneman from practice for four months.*fn4
(Following is a redacted copy of the Report and Recommendation of the Board on Professional Responsibility.)*fn6
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This is an original jurisdiction proceeding arising from Respondent's representation of three clients. We consolidate this proceeding with an unrelated reciprocal discipline matter that is also pending before the Board on Professional Responsibility ("Board").
The specification of charges in the original matter alleged, and Hearing Committee Number Eight ("Hearing Committee") concluded, that in Respondent's federal court practice in the District Court he violated the following District of Columbia Rules of Professional Conduct ("Rules") in the course of three client representations: Rules 1.1(a) (failure to provide competent representation); 1.3(a) (failure to represent zealously and diligently within the bounds of the law); 1.3(b)(1) & (2) (intentional failure to seek lawful objectives of client through reasonably available means, resulting in intentional prejudice or damage to client); 1.4(a) (failure to keep client reasonably informed about the status of his/her matter and promptly comply with reasonable requests for information); 5.5(a) (unauthorized practice of law when Respondent provided legal advice to clients on their federal matters while under an interim suspension from the District Court); 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (serious interference with the administration of justice).*fn7 The Hearing Committee recommended a 90-day suspension, without fitness, for the violations found.
For the reasons set out below, we adopt the Hearing Committee's proposed findings of fact and conclusions of law regarding the original jurisdiction violations. However, we disagree with the Hearing Committee's proposed 90-day suspension, and instead recommend a four-month suspension, without fitness, for both the original proceeding and the reciprocal discipline proceeding.
II. Original Jurisdiction Matter Regarding Client Representations, Bar Docket Nos. 393-00, 63-01, & 65-01
A. Findings of Fact and Conclusions of Law
Following the revocation of Respondent's Virginia Bar license on consent in October 1997, both the Court and the District Court issued interim suspensions (April 19, 1999 to August 15, 2001, and March 10, 2000 to August 7, 2002, respectively), pending final disposition of their respective reciprocal discipline proceedings based upon the Virginia license revocation. Starting in 1999 and continuing throughout the District Court's 29-month interim suspension, Respondent represented three separate clients with respect to their federal claims of employment discrimination. Based upon ethical complaints from each of these clients, Respondent was charged with professional misconduct in three counts. Count I (Snowden representation) charged violations of Rules 1.1(a) (failure to provide competent representation); 1.3(a) (failure to provide zealous and diligent representation); 1.3(b) (1) & (2) (intentional failure to seek the lawful objectives of client and intentionally prejudicing client during professional relationship); 1.4(a) (failure to keep client reasonably informed of the status of his matter and to promptly comply with reasonable requests for information); 5.5(a) (providing legal advice on a federal matter during his suspension from the District Court); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4(d) (engaging in conduct that seriously interfered with the administration of justice). Count II (Odom representation) and Count III (Ratliff representation) present similar charges (Rules 1.1(a), 1.3(a), 1.3(b)(1) & (2), 1.4(a), 5.5(a),*fn8 8.4(c), and 8.4(d)), but they also charge violations of Rule 1.16(d). These three original jurisdiction cases were consolidated and heard by the Hearing Committee over two days. We adopt the Hearing Committee's proposed findings of fact, which are reproduced below (with minor, non-substantive changes) for ease of reference. The Hearing Committee's findings were based upon testimony of the witnesses, the admitted exhibits, and the parties' joint stipulations (filed post-hearing), and are uncontested by the parties:*fn9
1. Respondent is a member of the D.C. Bar. He was admitted by examination on October 20, 1958.
2. Respondent also was a member of the Virginia Bar. Respondent also was admitted to practice before the federal courts in the District of Columbia.
3. In the summer of 1997, Mr. Richard L. Snowden retained Respondent to represent him in his employment discrimination claims against the Department of Treasury. Mr. Snowden paid Respondent a flat fee of $5,000 for his services. H.C. Rpt. at 3, ¶ 4.
4. On or about September 2, 1998, Respondent was advised by the Acting Director of the Office of Equal Opportunity Program of the Department of Treasury that there was insufficient evidence to support Mr. Snowden's claim. Respondent was informed of Mr. Snowden's right, within 90 days, tofile an action in the United States District Court. Id. at 3-4, ¶ 5.
5. On December 4, 1998, Respondent filed suit on behalf of Mr. Snowden in the United States District Court for the District ...