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In re Cleaver-Bascombe

February 9, 2006; as amended February 15, 2006

IN RE KAREN P. CLEAVER-BASCOMBE, RESPONDENT.
A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS (BAR REGISTRATION NO. 458922)



The opinion of the court was delivered by: Schwelb, Associate Judge

On Report and Recommendation of the Board on Professional Responsibility (BDN 183-02)

Argued November 8, 2005

Before SCHWELB and GLICKMAN, Associate Judges, and STEADMAN, Senior Judge.

Opinion for the court by Associate Judge SCHWELB.

Opinion of Associate Judge GLICKMAN, dissenting in part, at page 32.

This case involves the alleged falsification of a voucher by an attorney who had been appointed to represent an indigent criminal defendant pursuant to the Criminal Justice Act (CJA), D.C. Code §§ 11-2601 et seq. (2001). Essentially, Respondent Karen P. Cleaver-Bascombe, a member of our Bar since 1998, is alleged to have sought compensation for work that she knew she had not done. Although several issues are presented, the most significant one pertains to the imposition of an appropriate sanction. The Board on Professional Responsibility has recommended that Respondent be suspended from practice for ninety days, with reinstatement conditioned upon Respondent's successful completion of a Continuing Legal Education (CLE) course on timekeeping and related record-keeping. Bar Counsel initially took the position that Respondent should be disbarred, but now urges the court to suspend Respondent from practice for one year, with reinstatement conditioned upon proof of fitness to practice.*fn1

The allegations in this case are extremely serious. The compensation of attorneys who represent criminal defendants in the District of Columbia courts pursuant to the Criminal Justice Act is based upon the assumption that members of our Bar are honorable men and women who will accurately report the work that they have done, and who will not demean their noble calling and bring disgrace to themselves and to their profession by swearing that they performed work that they did not do. Attorneys who accept CJA appointments are therefore expected to be scrupulously honest and to exercise a high degree of care in completing their vouchers, which are paid out of taxpayer funds, and which are submitted to the court under penalty of perjury. Where an attorney has deliberately falsified a voucher and sought compensation for work that he or she has not performed, or for time that he or she has not devoted to the case, that attorney's fitness to practice is called into serious question. This is especially true if the attorney has compounded his or her initial fraud by testifying falsely during the resulting disciplinary proceedings.

In the present case, the Board, as well as Hearing Committee Number Seven, were called upon to determine the truth or falsity of Respondent's claims in her voucher. The Board essentially adopted the Hearing Committee's findings of fact. In the first part of its Report, the Board found that Respondent included in her voucher, inter alia, claims for a meeting with her client at the District of Columbia Jail, and for several telephone conversations with him, even though she knew that this meeting and the telephone conversations did not take place. The Board therefore concluded that Respondent submitted "a patently fraudulent voucher." Later in its Report, however, the Board turned its attention to Respondent's testimony before the Hearing Committee. Testifying in her own defense, Respondent swore that the meeting and conversations claimed in her voucher did take place, and she described the meeting at the jail, and to some extent her telephone conversations with her client, in elaborate detail. The Board nevertheless "agree[d] with Respondent that the [Hearing] Committee's findings do not support a conclusion that [Respondent] presented false evidence or testimony." Moreover, the Board recommended that the court impose the discipline proposed by the Hearing Committee -- a ninety-day suspension, with reinstatement conditioned on successful completion of a CLE course in timekeeping and record-keeping. This sanction appears to be a remedy more suited for a lawyer whose inaccurate and inflated voucher is due to unacceptably poor record-keeping than it is for one who deliberately submitted a fraudulent voucher and then attempted to cover up her misconduct by lying under oath.

Because Respondent swore to essentially the same propositions in her voucher and in her testimony, we are constrained to conclude that the Board's finding that the voucher was intentionally false and patently fraudulent is difficult, if not impossible, to reconcile with its later treatment of Respondent's testimony as not having been proved to be deliberately false. This is important, for although deliberate fraud and reckless disregard of consequences are both altogether unacceptable, the intentional fabrication of a voucher and of testimony before the Hearing Committee, with the intent to defraud the CJA Fund, may differ materially even from recklessly incompetent record-keeping where the attorney's reckless misconduct did not entail an intent to defraud or deliberate lying under oath.

In fashioning the appropriate discipline in this case, we must clearly understand which of these two kinds of misconduct Bar Counsel has proved by clear and convincing evidence. Accordingly, we remand the case to the Board for a resolution of the tension which we have identified between the Board's various findings.

I. PROCEDURAL BACKGROUND

On February 14, 2002, Respondent was appointed by the Superior Court to represent Donald C. Whitley, an indigent defendant,*fn2 at his arraignment in an extradition matter. Whitley's case arose out of a fraud charge which was allegedly pending against him in Charles County, Maryland. Whitley claimed that he was not the individual sought by Charles County authorities, and he asked Respondent to contest the requested extradition. The court imposed a $1,000 cash bond and committed Whitley to the District of Columbia Jail until such time as he was able to post bond. A status hearing was scheduled for March 20, 2002. Whitley posted bond on February 16, 2002, and he was duly released upon doing so. On March 20, 2002, the United States moved to dismiss the case against Whitley, and the court granted the motion.

On February 19, 2002, the Superior Court issued a "form" voucher to Respondent in order to enable her to apply for and receive payment for her services in representing Whitley. The voucher included spaces and sections for Respondent's use in itemizing her time, expenses, and requested compensation. Before submitting the voucher to the court for payment, Respondent was required to certify under oath that the contents thereof were true and correct.

On March 21, 2002, the day following the dismissal of the extradition case, Respondent submitted her voucher for fourteen and one-half hours of legal services. She requested compensation, inter alia, for the following items, all of which have been contested by Bar Counsel:

1. a two-hour conference with Donald Whitley on February 15, 2002, at the District of Columbia Jail;

2. a one-hour telephone conference with Mr. Whitley on February 20, 2002;

3. a one-hour telephone conference with Mr. Whitley on March 14, 2002;

4. a one-hour telephone conference with Mr. Whitley on March 19, 2002;

5. the preparation of a letter to an Assistant United States Attorney for one and one-half hours on February 15, 2002;

6. a one and one-half hour discussion on March 14, 2002, with Ms. Koustenis, an employee of the Charles County Warrant Office;

7. the review for one hour on March 19, 2002, of the government's motion to dismiss; and

8. the preparation for one and one-half hours of a "letter of instruction" to Mr. Whitley.

Respondent requested compensation in the total amount of $725. The parties evidently agree that the presumptive maximum for an extradition case is $1300, although the record does not reveal whether the underlying fraud charge against Whitley was a felony or a misdemeanor.*fn3

On April 5, 2002, upon receiving Respondent's voucher, the late Judge Steffen W. Graae, the presiding judge in Whitley's case, advised Respondent by letter that the claims in her voucher "raise serious concerns." The judge directed Respondent to call his administrative assistant to make an appointment with the judge, and he asked her to "[p]lease bring your case file when you come." Judge Graae further stated in his letter that if he did not hear from Respondent within ten days, he would authorize payment of whatever amount the judge deemed appropriate. On May 13, 2002, not having heard from Respondent,*fn4 Judge Graae wrote to her again. In his second letter, the judge informed Respondent that he had decided not to approve the voucher in any amount, and that he would instead refer the matter to Bar Counsel. The judge made the referral on the same date.

Fourteen months later, on July 14, 2003, Bar Counsel filed a Petition and accompanying Specification of Charges alleging that Respondent had violated the Rules of Professional Conduct

1. by charging an unreasonable fee, in violation of Rule 1.5 (a);

2. by making false statements of material fact to a tribunal, in violation of Rule 3.3 (a)(1);

3. by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4 (c); and

4. by engaging in conduct prejudicial to the administration of justice, in violation of Rule 8.4 (d).

An evidentiary hearing was held before the Hearing Committee on September 12 and 17, 2003. On May 5, 2004, the Committee issued its Report and Recommendation. The Committee found by clear and convincing evidence that Respondent had charged an unreasonable fee (in violation of Rule 1.5 (a)) and that she had engaged in conduct involving dishonesty (in violation of Rule 8.4 (c)). The Committee concluded, however, that Bar Counsel had failed to prove that Respondent had made false statements to a tribunal or that she had engaged in conduct prejudicial to the administration of justice. The Committee recommended that Respondent be suspended from practice for ninety days and that, as a condition of reinstatement, she be required to complete successfully a CLE course in timekeeping and record-keeping.

Respondent excepted both to the Hearing Committee's findings and to the proposed discipline. Bar Counsel excepted to the Committee's finding that Respondent had not violated Rules 3.3 (a)(1) and 8.4 (d), and also objected to the recommended sanction, contending that it was not commensurate with Respondent's misconduct. On December 17, 2004, the Board issued its Report and Recommendation. The Board concluded that Bar Counsel had proved by clear and convincing evidence that Respondent violated all four Rules of Professional Conduct cited in the Specification of Charges. The Board adopted the findings of the Hearing Committee, as well as the Committee's recommended sanction. Both Respondent and Bar Counsel filed exceptions, and Bar Counsel now asks this court to order that Respondent be suspended for one year and that she be required to prove fitness to practice as a condition of reinstatement. Respondent continues to deny that she violated any of the Rules of Professional Conduct.

II. STANDARD OF REVIEW

In disciplinary cases, the Board must accept the Hearing Committee's evidentiary findings, including credibility findings, if they are supported by substantial evidence in the record. This court, in turn, must accept the Board's findings of fact, and we also apply the "substantial evidence" standard. See D.C. Bar R. XI, § 9 (g); In re Berryman, 764 A.2d 760, 766 (D.C. 2000); In re Micheel, 610 A.2d 231, 234 (D.C. 1992); In re Cooper, 591 A.2d 1292, 1294 (D.C. 1991). We review the Board's conclusions of law de novo. In re Fair, 780 A.2d 1106, 1110-11 (D.C. 2001); In re Berryman, 764 A.2d at 766; In re Micheel, 610 A.2d at 234.

We must impose the discipline recommended by the Board "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9 (g)(1). In In re Soininen, 853 A.2d 712, 723 (D.C. 2004), we stated:

[Section 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)).

But "[a]lthough we must give considerable deference to the Board's recommendations in these matters, the responsibility for imposing sanctions rests with this court in the first instance." In re Temple, 629 A.2d 1203, 1207 (D.C. 1993).

Further, where "this court has had little occasion to pass upon conduct such as was involved in that case and here, and therefore our role in reviewing the Board's recommendation may be more assertive than in more familiar types of misconduct." In re Schneider, 553 A.2d 206, 211 (D.C. 1989) (brackets and ellipsis omitted). We also note that this is apparently the first case in which this court has been called upon to determine the appropriate sanction for filing a false or inflated voucher. "Since this is the first occasion for this court to pass upon conduct like that of [Respondent], ...


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