Court of Appeals (Bar Registration No. 3939).
On Report and Recommendation of the Board on Professional Responsibility (BDN 49-98)
Before REID and GLICKMAN, Associate Judges, and PRYOR, Senior Judge.
In this uncontested case, the Board on Professional Responsibility ("Board") has found that respondent Dorsey Evans violated Rules 1.1 (a) (competent representation), 1.1 (b) (skill and care), 1.7 (b)(4) (conflict of interest), and 8.4 (d) (conduct that seriously interferes with the administration of justice). This court will accept the Board's findings as long as they are supported by substantial evidence in the record. D.C. Bar R. XI, § 9 (g)(1). We find substantial support in the record for the Board's findings, and accordingly, we accept them.
We append the Board's thorough and instructive report to this opinion.*fn1 As the report explains, the "central factor" in respondent's misconduct was a conflict of interest arising from his dual roles as both the owner of a title company that handles real estate loan closings and a lawyer whose practice includes probate and real estate matters. The conflict that led respondent into his ethical difficulties developed when his title company was contacted to close a real estate loan. It was discovered that the property to be encumbered was not owned by the prospective borrower, but instead belonged to the unprobated estate of the borrower's deceased mother-in-law. In his capacity as a lawyer, respondent thereupon undertook to represent the borrower and initiate a probate proceeding to secure her title to the property she wished to encumber. The potential conflict of interest was created by respondent's personal financial interest, through his ownership of the title business, in facilitating the closing of the loan. Respondent did not obtain his client's informed waiver of this potential conflict, which, the Board found, led him into a number of errors and more serious failings.
The Board recommends a six month suspension, during which time respondent would be required to complete six hours of continuing education classes in probate law and legal ethics, that the final ninety days of his suspension be stayed on the condition that respondent agree to be placed on probation for a period of one year, that during the probationary period, respondent would be subject to oversight by a practice monitor, and that failure to cooperate with the practice monitor would violate his probation resulting in the imposition of the stayed portion of his suspension. We accept its recommended sanction for the reasons set forth by the Board in its report and because it is not inconsistent with the range of discipline imposed in similar cases involving conflict of interest. In re Zelloe, 686 A.2d 1034 (D.C. 1996) (ninety-day suspension for failure to disclose personal interest and dishonesty in connection with a loan transaction); In re Shay, 756 A.2d 465 (D.C. 2000) (ninety-day suspension for multiple violations including dishonesty and conflict of interest); In re Hager, 812 A.2d 904 (D.C. 2002) (one-year suspension for conflict of interest and dishonesty in connection with failure to disclose settlement-fee arrangement to clients). Further, Bar Counsel has informed the court that she takes no exception to the Board's report and recommendation, and respondent has not filed any exceptions to the Board's report and recommendation. Thus, we give heightened deference to the Board's recommendation. See D.C. Bar R. XI, § 9 (g)(2); In re Hitselberger, 761 A.2d 27 (D.C. 2000); In re Delaney, 697 A.2d 1212, 1214 (D.C. 1997). Accordingly, it is
ORDERED that Dorsey Evans is suspended from the practice of law in the District of Columbia for a period of six months with reinstatement conditioned upon his completion of six hours of continuing legal education courses in the area of probate law and legal ethics. We direct respondent's attention to the requirements of D.C. Bar R. XI, § 14 (g), and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16 (c). It is
FURTHER ORDERED that the final ninety days of respondent's suspension be stayed on the condition that he agree to be placed on probation for a period of one year, during which time respondent shall be subject to oversight by a practice monitor. Failure to cooperate with the practice monitor shall violate his probation resulting in the imposition of the stayed portion of his suspension.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of:
Bar Docket No. 049-98 Respondent.
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 3939)
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This matter comes to the Board on Professional Responsibility (the "Board") from Hearing Committee Eight ("Committee"). It arises out of Respondent's representation of Carolyn Robinson in connection with a real estate loan. The story begins when Ms. Robinson decided to take out a loan with her house as security. Her mortgage broker referred her to a title company owned and operated by Respondent. Sometime thereafter, it became evident that Ms. Robinson did not have title to the property, which was deeded to her deceased mother-in-law, Zaidee Robinson. Respondent, in his capacity as an attorney, assisted Ms. Robinson in opening an estate for Zaidee, for which she was appointed as a co-personal representative with her son. After a number of problems with the estate were discovered, the Probate Court removed Ms. Robinson as personal representative and referred the Respondent to Bar Counsel.
Bar Counsel charged Respondent with violating six D.C. Rules of Professional Conduct: Rule 1.1(a) by failing to provide competent representation; Rule 1.1(b) by failing to serve his client with the skill and care generally required; Rule 1.7(b)(4) by representing a client in a manner where his judgment might be adversely affected by his own financial interests; Rule 3.3(a)(2) by counseling or assisting a client to engage in criminal or fraudulent conduct; Rule 8.4(c) by engaging in dishonest conduct, and; Rule 8.4(d) by engaging in conduct that seriously interfered with the administration of justice. The Committee found that Respondent's conduct violated Rules 1.1(a), 1.1(b), 1.7(b)(4) and 8.4(d) and recommended a sixty-day suspension with readmission conditioned on successful completion of continuing education courses on ethics and probate law.
Respondent excepted to the Committee's findings of fact and conclusions of law, asking that the Board overturn them "in their entirety." Bar Counsel took no exception to the Committee's report and recommendation and filed a brief in support thereof. Upon review, we sustain the Committee's finding that Respondent violated Rules 1.1(a), 1.1(b), 1.7(b)(4) and 8.4(d). For the reasons explained below, we do not agree with the Committee that a sixty-day suspension with reinstatement conditioned on completion of continuing education classes is a sufficient sanction. We find that Respondent's misconduct demonstrates a need for assistance in assuring that his future conduct meets the ethical requirements of our profession. Accordingly, we recommend that the Respondent be suspended for six months. We further recommend that ninety days of this suspension be stayed in favor of a one-year probationary period during which time Respondent will be required to work with a practice monitor. We also recommend that Respondent be required to take six hours of continuing legal education courses.
Bar Counsel served the Respondent with the Specification of Charges on January 8, 2004. Respondent filed an answer on January 28, 2004. Bar Counsel filed "Bar Counsel's List of Exhibits" ("BX") marked as A through G, and 1 through 27 and Respondent filed "Respondent's List of Exhibits" ("RX"), marked as 1 through 3. The parties also filed a joint stipulation of certain facts ("JSF"). The Committee held a prehearing on February 10, 2004,*fn2 and heard evidence and argument on February 24 and March 2, 2004.*fn3 Bar Counsel called five witnesses: Rene Fox (expert on probate matters), Lane Potkin (expert on real estate matters), Donald Horton (former Deputy Register of Wills) and attorney Benny Kass (court-appointed successor personal representative of Zaidee Robinson's estate). Respondent, who appeared pro se, cross-examined Bar Counsel's witnesses and testified under oath on his own behalf, but did not present any other witnesses.
At the conclusion of the hearing, the Committee made a preliminary, non-binding determination that Respondent had violated at least one Rule of Professional Conduct, and each party made a submission on aggravation and mitigation. After the hearing, Bar Counsel submitted proposed findings of fact and conclusions of law, Respondent filed a response thereto and Bar Counsel filed a brief in reply.
The Committee issued its Report and Recommendation on April 30, 2004. As noted above, only Respondent excepted thereto. The Board heard oral argument on October 7, 2004.
Although Respondent suggests that the Committee's findings be overturned in their entirety, he does not specifically challenge any of the Committee's factual findings. Hearing Committee findings of fact will be affirmed when supported by "substantial evidence on the record, viewed as a whole." Board R. 13.7; In re Micheel, 610 A.2d 231, 234 (D.C. 1992). We owe no deference, however, to the Hearing Committee's determination of "ultimate facts," such as whether the facts establish a violation of a Rule, and other conclusions of law. Micheel, 610 A.2d at 234; In re Appler, 669 A.2d 731, 739 (D.C. 1995).
In this matter, we find the Committee's findings of fact, with one exception noted below, to be amply supported by the record. We have adopted many of them, but have eliminated certain other findings that are unnecessary to the analysis and outcome of this matter. Pursuant to Board Rule 13.7, we have made some additional findings to provide context and further support for our conclusions. Finally, we have revised and reorganized the findings for ease in evaluating the violations at issue.
1. Respondent is a member of the Bar of the District of Columbia Court of Appeals, having been admitted on June 1, 1960. BX G 15 at 216. Respondent is also admitted to practice law in Maryland and Kansas. Tr. I at 93 (Respondent).
2. Respondent's practice has included probate matters in the D.C. Superior Court since that court was formed in 1972. Tr. I at 99 (Respondent); BX G 15 at 265.
3. Respondent also has an active real estate settlement practice. In 1997, Respondent owned Delco Title, which he operated out of his law office in Silver Spring, Maryland. Tr. I at 91 (Respondent). Bankers Financial Group, a mortgage lending company, used Respondent and Delco Title repeatedly for mortgage settlements over a three- to four-year period through 1997, sending Delco Title approximately 20 loans per month for handling. BX G 16 at 345-46 and 359-61.
B. The Heirs of Zaidee Robinson
4. Mrs. Zaidee H. Robinson died in 1987. BX E 1. At the time of her death, Zaidee Robinson owned real property located at 716 Ingraham Street in northwest Washington, D.C. (hereinafter the "Ingraham Street property"). As of April 1997, Zaidee Robinson's estate had never been probated. JSF ¶¶ 2-3; BX E 1.
5. Zaidee Robinson was survived by two sons, Maurice and Clifton. Id.
6. Maurice Robinson died in 1989. He was survived by his wife, Carolyn Robinson and two sons Qawi and Yusef. At the time of his death, Maurice and his family resided at the Ingraham Street property. Id. at ¶¶ 4, 6.
7. Following his mother's death, Clifton Robinson was incarcerated. Id. at ¶5.
C. Respondent's Representation of Carolyn Robinson
8. On April 17, 1997, Bankers Financial contacted Delco Title about handling a closing on a real estate loan for Carolyn Robinson. Answer, BX D at 21; Tr. I at 100-01 (Respondent); BX F 7 at 89; BX G 13 at 186. The loan was for $65,000 on the Ingraham Street property, where Carolyn Robinson lived at the time. BX F 7 at 94; JSF ¶ 8.
9. At some point after the initial referral, Respondent learned that the Ingraham Street property was deeded to Zaidee rather than Carolyn Robinson. Tr. I at 105-09 (Respondent); BX F 7. Carolyn Robinson subsequently retained Respondent to assist her in becoming personal representative of Zaidee Robinson's estate and in closing the loan on the Ingraham Street property. Id. As described by Respondent, his "office was asked to handle a title closing for Carolyn Robinson and a probate estate was opened to have the appropriate people appointed to sign for the loan." BX F 5 at 67.
10. The Committee concluded that the record is unclear regarding whether Respondent or a representative of Delco Title or anyone else in Respondent's office disclosed his interest in Delco Title to Carolyn Robinson. HC Report PFF 15. We disagree with this finding in view of Respondent's testimony that there was no situation in which it would have been appropriate for him to disclose his interest in Delco to Carolyn Robinson and that he had no knowledge whether she had such information prior to representing her in connection with the estate. Tr. II at 175-76. Accordingly, the Board finds that Bar Counsel proved by clear and convincing evidence that Respondent did not himself disclose his conflict to Carolyn Robinson and did not know whether she had knowingly waived the potential conflict prior to representing her in his capacity as an attorney.
11. On April 24, 1997, Respondent filed a Petition for Probate in the Probate Division of the Superior Court of the District of Columbia, on behalf of Qawi S. Robinson, Carolyn Robinson, and Clifton Robinson, as petitioners. Qawi and Carolyn Robinson are listed as personal representatives. The petition bears signatures of all three petitioners and Respondent signed as counsel. BX E 5.
12. The petition listed Maurice Robinson, Carolyn's husband, as "deceased." Id. At the time of the filing, no probate estate had been opened for Maurice Robinson.
13. The petition listed Clifton Robinson as "incarcerated." BX E 5. Respondent was informed by Carolyn Robinson that Clifton would waive his interest in the estate. Tr. I at 110-12 (Respondent). Respondent made no effort to confirm this purported waiver with Clifton Robinson. BX G 13 at 187.
14. Forms entitled "Renunciation, Nomination of Personal Representative and Waiver of Bond" signed by Clifton and Yusef Robinson were filed with the Petition (the "renunciation forms"). BX E 5.
15. On April 29, 1997, a Probate Judge signed an Abbreviated Probate Order appointing Carolyn and Qawi Robinson as co-personal representatives of the estate of Zaidee Robinson. BX E 5.
16. On May 8, 1997, Qawi and Carolyn Robinson, as co-personal representatives of the estate, deeded the Ingraham Street property to Carolyn Robinson. BX F 5 at 71.
17. The same day, Carolyn Robinson executed a Deed of Trust mortgaging the Ingraham Street property for $65,000. Id. at 72-79.
18. The interest rate on the mortgage was 12.930%. Id. A broker's fee of $6,500 was paid to Bankers Financial from the settlement funds. BX F 6 (HUD Form 1-A).
19. Delco Title was paid a settlement fee of $350. Id. 20. Delco Title received a check for $824.20 out of the settlement funds. BX F 7 at 93. In addition to the settlement fee listed above, this payment included items 1102 and 1103 on HUD Form 1-A: $325 for "Abstract or title search to Lots and Squares Abstractors" and $160 "Title examination to Spectrum Title Services." BX F 6 at 84. In fact, Delco paid only $75 to Spectrum Title Services and $155 to Lots and Squares Abstractors. BX F 7 at 108. Accordingly, the fees retained by Delco totaled $590.
21. Respondent's law office, Evans & Evans received $1,700.00 in fees from the settlement funds. This included document preparation fees (items and 1104 and 1105 on HUD Form A-1) and ...