On Report and Recommendation of the Board on Professional Responsibility. (BDN 461-03)
Before GLICKMAN, Associate Judge, and WAGNER and TERRY, Senior Judges.*fn1
Petitioner Wendell C. Robinson was disbarred in 1990 for misappropriation of client funds and dishonesty. In re Robinson (Robinson I), 583 A.2d 691 (D.C. 1990). The Board on Professional Responsibility now recommends that Robinson be reinstated to the Bar of this Court subject to financial monitoring and other specified conditions. See D.C. Bar Rule XI, § 16 (d), (f).
The recommendation of reinstatement has the express support of Bar Counsel. Robinson accepts the proposed conditions.
This is the fourth time that Robinson has petitioned for reinstatement.*fn2 His prior petitions all were disapproved because his financial practices were questionable, and because he was not candid in discussing them. See, e.g., Robinson II, 705 A.2d at 689-90. In denying Robinson's first petition, we deemed it "almost self-evident that an attorney disbarred for dishonest misappropriation must pay scrupulous attention to his financial obligations during the five-year period before he is eligible for and seeks reinstatement." Id. at 689. "Moreover," we added, "few things will doom a reinstatement petition more surely than a failure to cooperate frankly and completely with the investigation attending that process." Id. Given this history, though neither Robinson nor Bar Counsel took exception to the Board's current recommendation in favor of reinstatement, we deemed it appropriate to request supplemental briefing and argument directed to the following issues:
(1) whether petitioner has met his burden of proving by clear and convincing evidence that he meets the requirements for reinstatement, see D.C. Bar R. XI, § 16 (d)(1) and (2), in light of the entire record and the perceived need to impose financial monitoring and other conditions to protect the public; (2) whether petitioner would meet the requirements for reinstatement without the recommended conditions; and (3) whether it is appropriate to reinstate an attorney who was disbarred for misconduct where it is deemed necessary or desirable to impose monitoring and other prospective conditions pursuant to D.C. Bar R. XI, § 16 (f), in order to ensure the protection of the public from further misconduct by the attorney.
We received briefs in response to our request, and thereafter heard argument, from Robinson, Bar Counsel and the Board.
For the reasons set forth in the Board report appended to this opinion, both the Board and Bar Counsel are convinced that Robinson at last has "establish[ed] by clear and convincing evidence that (1) he has the 'moral qualifications, competency, and learning in law required for readmission,' and (2) his resumption of the practice of law 'will not be detrimental to the integrity and standing of the Bar, or the administration of justice, or subversive to the public interest.'" In re Reynolds, 867 A.2d 977, 978 (D.C. 2005) (quoting D.C. Bar R. XI, § 16 (d)). See also In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985) (listing five factors to be considered in evaluating reinstatement petitions).*fn3 In particular, addressing the issues that had stymied Robinson's prior reinstatement petitions under the third and fourth Roundtree factors, the Board and Bar Counsel profess themselves satisfied that Robinson has accepted appropriate financial advice, rectified his personal and business financial practices, and discussed his finances and business activities with genuine openness. Both the Board and Bar Counsel emphasize that Robinson has shown steady improvement in dealing with his finances in the years since his disbarrment, and a corresponding improvement in his candor.*fn4
Although "the ultimate decision on whether an attorney is reinstated is ours alone," we attach "great weight" to the Board's positive recommendation, Roundtree, 503 A.2d at 1217, especially when Bar Counsel agrees with it. See, e.g., Reynolds, 867 A.2d at 978; In re (Timothy) Brown, 845 A.2d 519, 521 (D.C. 2004). The recommendation in this case, as in many cases, rests heavily on the positive assessment of Robinson's credibility by the Hearing Committee that initially considered his reinstatement petition and heard him testify, "and we are reluctant to second-guess the Committee's assessment on the basis of a paper record alone." (Timothy) Brown, 845 A.2d at 522.
Our Bar Rules authorize us to impose restitution and other "appropriate" conditions on reinstatement "[i]f the petitioner is found fit to resume the practice of law. . . ." D.C. Bar R. XI, § 16 (f). The Board has stated in the past that it "generally does not support conditional reinstatements. Either the petitioner is fit to return to law practice or the petitioner is not fit." In re McConnell, 667 A.2d 94, 96 (D.C. 1995) (appended Board Report) (internal quotation marks and citation omitted). Nonetheless, this Court occasionally has imposed conditions on reinstatement (in addition to restitution),*fn5 in order to "assure the Court and the public, not so much of [the attorney's] present fitness, which was adequately demonstrated . . . , but of his continued fitness in the initial period after he returns to the practice of law." Id. at 97. In the present case, the Board recommends that Robinson be reinstated on the conditions that he must complete a course in financial management, follow the guidance of the D.C. Bar's Lawyer Practice Assistance Program on running a law office, and be supervised by a financial monitor during his first year back in practice.
The Board and Bar Counsel express confidence that Robinson meets the requirements for reinstatement without the recommended conditions. They state that the monitoring and other conditions are not "necessary or central to Petitioner's reinstatement but are clearly desirable";*fn6 the conditions "are intended not to cure a deficiency in Petitioner's reinstatement showing, but to add an extra measure of protection to assure Petitioner's continued fitness."*fn7 In other words, the recommendation of conditions in this case is consistent with our rationale for imposing conditions on other reinstatements; not because the attorney otherwise would be unfit to practice law, but because the public interest will be served by conditions that help even a fit attorney to meet the challenges of returning to practice. In Robinson's case, the recommended conditions are responsive to Robinson's historic difficulties in managing his financial affairs properly; the conditions thus are designed to serve the public interest by helping Robinson fulfill the additional financial responsibilities he will assume as a lawyer.
We have considered carefully the recommendation of the Board, seconded by Bar Counsel, that Robinson be reinstated on conditions. Giving due deference to the Board's and Bar Counsel's assessments of his character, credibility and accomplishments, we conclude that Robinson finally has met his heavy burden of proof. Accordingly, petitioner Wendell C. Robinson is hereby reinstated to the Bar of the District of Columbia, subject to the conditions set forth in the Board's report accompanying this opinion.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
Bar Docket No. 461-03 D.C. Bar No. 377091 Prior Proceedings: No. 89-371
(Rogers, C.J., Farrell, J., Mack, Sr. J.)
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This matter comes to the Board on Professional Responsibility ("the Board") from Hearing Committee Number Nine ("the Committee"), which concluded that Wendell C. Robinson ("Petitioner") had met his burden of proving by clear and convincing evidence that he meets the requirements for reinstatement to the Bar, and that Petitioner should be reinstated with conditions. As fully set forth below, the Board agrees with the Committee and recommends that Petitioner be reinstated with conditions.
A. Background on Disbarrment and Previous Applications for Reinstatement
Petitioner was admitted to the District of Columbia Bar on February 10, 1984. He was disbarred on December 19, 1990, for violations of the D.C. Code on Professional Responsibility. In re Robinson, 583 A.2d 691 (D.C. 1990) (per curiam) (Robinson I). The violations grew out of Petitioner's representation of Patricia Green in a personal injury action. Petitioner, who was principally a criminal defense lawyer, settled the claim on Ms. Green's behalf for $600.00, of which he was entitled to $120.00 and Ms. Green to $480.00. Petitioner cashed the settlement check and used all of the funds for his own purposes. He did not inform Ms. Green of this fact, did not keep a record of the transaction, and did not keep a record of what he did with the proceeds. Petitioner did not have a trust account, and his office operating account showed insufficient funds during the period when Ms. Green's funds should have been available.
Ms. Green made several unsuccessful attempts to obtain the funds, but Petitioner repeatedly misled Ms. Green about the status of her funds. Although he finally wrote her a check on his office operating account, the check was repeatedly dishonored due to insufficient funds. After Ms. Green filed a complaint with Bar Counsel's Office, Petitioner paid Ms. Green. Petitioner was found to have committed five violations: (1) dishonesty and misrepresentation, DR 1-102(A)(4); (2) commingling of a client's funds, DR 9-103(A); (3) misappropriation of a client's funds, DR 9-103(A)(2); (4) failure ...