The opinion of the court was delivered by: Schwelb, Senior Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN398-01)
Dissenting opinion by Senior Judge WAGNER at p. 19.
Before FISHER, Associate Judge, and WAGNER and SCHWELB, Senior Judges.*fn1
In a Report and Recommendation issued on May 2, 2005, the Board on Professional Responsibility (BPR or the Board) found by clear and convincing evidence that Brian O. Godette, a member of our Bar, violated Rule 8.1 (b) of the Rules of Professional Conduct (failure to respond reasonably to a lawful demand for information from a disciplinary authority), Rule 8.4 (d) (serious interference with the administration of justice), and D.C. Bar R. XI, § 2 (b)(3) (failure to comply with an order of the BPR). The Board recommended that Godette be suspended from practice for thirty days and that, before resuming the practice of law, he be required to show (1) that he has made a response to the underlying ethical complaint against him, and (2) that he has taken six hours of Continuing Legal Education (CLE) courses in ethics and professional responsibility.
Godette, who has not participated in this case before the Hearing Committee, before the Board, or before this court, and who is under administrative suspension from our Bar for non-payment of dues, has filed no exception to the Board's recommendation. Bar Counsel proposed to the Board, and now urges before this court, that Godette be required, as a condition of reinstatement, to prove his fitness to resume the practice of law. The Board rejected this recommendation because, notwithstanding what was in effect a contrary finding by the Hearing Committee,*fn2 it concluded "that there is no substantial evidence in the record to conclude that [Godette] deliberately evaded service of process in this case." Because Godette never challenged the Hearing Committee's position on the issue, and because there is ample and even compelling evidence, in the record taken as a whole, that Godette deliberately avoided service of process, we conclude that the Board's recommendation that a "fitness" requirement not be imposed is based on an incorrect factual premise. We therefore remand to the Board so that on the basis of a factual predicate consistent with this opinion, it may reconsider whether, as a further condition of reinstatement, Godette should be required to prove his fitness to practice law.
This is a case in which an attorney, after allegedly abandoning a civil matter on behalf of an incarcerated client who claimed to have paid him a substantial fee, repeatedly and contemptuously*fn3 ignored the efforts of the disciplinary authorities to determine the merits of the client's complaint. Godette's complete failure, over a substantial period of time, to recognize or carry out his ethical obligation to cooperate with Bar Counsel and with the Board at least arguably casts grave doubt as to his fitness to practice law in the District of Columbia.
The proceedings against Godette had their origin in a letter dated October 21, 2001, from Terry S. Hill-Bey, who was then incarcerated in Jessup, Maryland, to the "Attorney Grievance Committee of the District of Columbia." In his letter, Mr. Hill-Bey asserted that on August 9, 1996, he had signed a retainer agreement with Godette's law firm for work relating to the estate of Hill-Bey's mother, that he had paid $975.00 in fees to the firm (as well as a retainer fee), and that "this law firm abandoned the case back in August of 1998, with no reason as to why." Hill-Bey claimed that he and members of his family had attempted to contact Godette and his firm, but had received no response.
Beginning on November 27, 2001, and over a period of more than half a year, the Office of Bar Counsel sent seven separate letters to Godette at his address of record with our Bar, and then at two other addresses, each enclosing a copy of Mr. Hill-Bey's complaint and requesting a response thereto.*fn4 No response was received to any of these seven letters, and none of them was returned by the Post Office.
In July 2002, having received no response from Godette, Bar Counsel initiated enforcement proceedings, with the following results (as described in the Board's Report):
10. On or about July 3, 2002, an Assistant Bar Counsel filed a motion to compel Respondent's response to the ethical complaint, and on July 3, 2002, sent a copy to Respondent at 12205 Torrey Pines Terrace, Beltsville, Maryland 20705. The motion included as attachments copies of Bar Counsel's previously sent correspondence as well as another copy of the ethical complaint. The motion was not returned, and Respondent did not respond.
11. On August 5, 2002, the Board issued an Order that required Respondent to respond to the Complaint and to each of Bar Counsel's letters within ten days of the date of the Order. On August 6, 2002, the Order was sent to Respondent at 825 North Capitol Street, Washington, D.C. 20002, and at 12205 Torrey Pines Terrace, Beltsville, Maryland 20705. Respondent did not respond.
12. On or about August 16, 2002, Respondent left a telephonic message with an Assistant Bar Counsel stating that Respondent would submit his response by the close of business on Monday, August 19, 2002. No response was received.
(Citations to record omitted.) It is thus undisputed that as of mid-August 2002, by which time seven letters (accompanied by Hill-Bey's complaint), one motion to compel, and one order of the Board had been sent to him, Godette was aware of the ethical complaint against him. Notwithstanding the telephone message that he left with Bar Counsel to the effect that he would respond within three days, however, Godette neither responded nor cooperated in any other way.
For some reason not explained in the record, there were no further developments in this matter between August 16, 2002 and April 25, 2003. Beginning on the latter date, a process server attempted on seven different dates, at various hours of the day, including early morning and late evening, to effect personal service on Godette.*fn5 Six of these attempts were made at the Beltsville address, and on two occasions, one at 6:40 a.m. and one at 6:10 p.m., the process server reported hearing activity that led him to believe that someone was in the residence. Nevertheless, nobody came to the door on any of these occasions, and the process server was never able to serve Godette personally with the specification of charges.*fn6 Finally, on June 25, 2003, at the request of Bar Counsel, this court entered an order directing that the petition be served on Godette by mailing a copy to his Beltsville residence and by publication in two successive issues of The Washington Post and The Washington Times.
On July 8, 2003, Godette acknowledged receipt of the Specification of Charges, the Petition Instituting Formal Disciplinary Proceedings against him, and of the Rules of the Board. He did so by signing a certified return receipt acknowledging delivery at the Beltsville address. The unkept promise of August 16, 2002, to file a response and the signing of this receipt are the only actions (if, indeed, they can be described as actions) that Godette has taken in this case from 2001 until the present date.*fn7
II. PROCEEDINGS BEFORE THE HEARING COMMITTEE AND THE BOARD
On August 21, 2003, an Ad Hoc Hearing Committee held a hearing on Bar Counsel's complaint. As previously noted, Godette neither responded to the charges nor participated in any other way. The Committee made proposed findings of fact essentially identical to the findings subsequently adopted by the Board. The Committee also stated, however, that "based on the record evidence, the Committee infers that Respondent evaded service of process, thereby causing Bar Counsel and the [c]ourt to expend additional resources to effectuate service of process through alternative means." The Committee found that Bar Counsel had established all three charges by clear and convincing evidence. The Hearing Committee recommended the same sanction that the Board later proposed, see pp. 1-2, supra, except that the Committee suggested that Godette be required to complete twelve (rather than six) hours of CLE relating to legal ethics and professional responsibility. With apparent ...