The opinion of the court was delivered by: Schwelb, Senior Judge
On Report and Recommendation of the Board on Professional Responsibility (BD Nos. 189-99, 454-99, 146-00, 112-02 & 193-02)
Before: RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and SCHWELB, Senior Judge.
Having found that Respondent, Lloyd F. Ukwu violated several Rules of Professional Conduct in his representation of five different clients, the Board on Professional Responsibility, through its counsel, has proposed that Respondent be suspended from practice for two years and that reinstatement be conditioned upon proof of fitness to practice and upon payment of restitution, with interest, to three of his clients. This proposal modifies the Board's earlier recommendation of a one-year suspension with the same conditions; the modification is based on legal developments since the Board filed its Report. We adopt the Board's recommendation as modified.
Respondent was admitted to practice in the District of Columbia on October 13, 1989. Much of his practice has consisted of the representation of foreign nationals in immigration matters. On December 10, 2003, and January 14, 2004, Bar Counsel charged Respondent with violations of various Rules of Professional Conduct in relation to his representation of five clients: Michael Madagu, Malinda Davies, Owanate Davies,*fn1 Toyin Asegieme, and Esther Tembi. Specifically, Mr. Ukwu was charged with violating several Rules requiring an attorney to represent his clients competently;*fn2 with intentionally neglecting the matters of all five of his clients;*fn3 with failing to "act with reasonable promptness" in representing his clients,*fn4 with failing to communicate to a client the basis for his fee;*fn5 with violation of his duty of candor toward a tribunal;*fn6 with engaging in conduct involving dishonesty;*fn7 and with conduct that seriously interfered with the administration of justice.*fn8
Respondent denied all of Bar Counsel's allegations, and an evidentiary hearing was held before an Ad Hoc Hearing Committee on April 13-14, 2004 and on June 1-2, 2004. On December 28, 2004, the Committee issued a comprehensive Report and Recommendation in which it found that Respondent had failed to provide competent representation, in violation of Rules 1.1 (a), 1.1 (b), 1.3 (a) and 1.4 (a), to any of his five clients. The Committee also found, solely with respect to the representation of Esther Tembi, that Respondent had engaged in dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4 (c), and in intentional misconduct, in violation of Rules 1.3 (b), 1.4 (b), and 3.3 (a)(1). The Hearing Committee recommended that Mr. Ukwu be suspended from practice for eighteen months, and that his reinstatement be conditioned upon proof of his fitness to practice and upon payment of restitution, with interest, to Michael Madagu, Toyin Asegieme, and Esther Tembi.
Both Bar Counsel and Respondent filed exceptions to the Hearing Committee's recommendation. On July 29, 2005, the Board on Professional Responsibility filed a detailed Report and Recommendation, a copy of which is attached to this opinion. The Board adopted most of the Hearing Committee's findings, but concluded, on the basis of the facts found by the Hearing Committee, that Bar Counsel had proved violations by Respondent of two additional Rules. Specifically the Board found that Mr. Ukwu had failed to act with reasonable promptness, as required by Rule 1.3 (c), and that he had engaged in conduct that seriously interfered with the administration of justice, in violation of Rule 8.4 (d). Although the Board found a greater number of violations by Respondent than the Hearing Committee did, it recommended more lenient discipline than that proposed by the Committee. The Board proposed that Mr. Ukwu be suspended from practice for one year, and that reinstatement be conditioned on proof of fitness and on payment of restitution with interest to three clients, as proposed by the Hearing Committee.*fn9
Respondent filed exceptions to the Board's Report and Recommendation, contending that Bar Counsel had failed to prove a violation of Rule 8.4 (c) (conduct involving dishonesty, fraud, deceit or misrepresentation), that the proposed discipline was too harsh, and that Respondent should receive a suspended sanction conditioned on a term of probation.*fn10 Bar Counsel likewise filed exceptions contending, inter alia, that Respondent had intentionally prejudiced the interests of all five of his clients, in violation of Rule 1.3 (b); that he had engaged in dishonesty, fraud, deceit and misrepresentation not only vis-a-vis Esther Tembi, but also in his representation of Owanate Davies and Toyin Asegieme, in violation of Rule 8.4 (c); that he had seriously interfered in the administration of justice in his representation of Michael Madagu, in violation of Rule 8.4 (d); that he had failed to act with candor to the tribunal in his representation of Ms. Asegieme, in violation of Rule 3.3 (a)(1); and that Respondent should either be disbarred or suspended from practice for three years, with reinstatement conditioned upon proof of fitness and payment of restitution with interest.
In our view, the Board's Report taken as a whole, contains a comprehensive, thoughtful and balanced assessment of the charges against Mr. Ukwu. We agree with much, but not with all, of the Board's analysis. Specifically, in order to avoid duplication, we adopt the Board's Report, except to the extent that it is inconsistent with our discussion, in Parts II, III and IV of this opinion, of issues relating to dishonesty, intent, and the appropriate sanction.*fn11
II. RULE 8.4 (c): DISHONESTY, FRAUD, DECEIT AND MISREPRESENTATION
Respondent contends that he did not violate Rule 8.4 (c) vis-a-vis any of his clients, and that the Hearing Committee and the Board erroneously found that he had failed to comply with this Rule in his representation of Ms. Tembi. Bar Counsel argues that the Committee and the Board should have found violations of Rule 8.4 (c) not only as to Ms. Tembi, but also in the representation of Owanate Davies and Ms. Asegieme. We accept the findings of the Board and the Hearing Committee as to Respondent's conduct while representing Owanate Davies. We think that further elaboration is required, however, in the cases of Ms. Tembi and Ms. Asegieme.
The finding by the Board that Respondent had violated Rule 8.4 (c) in his representation of Ms. Tembi was based primarily on the decision of the Hearing Committee to credit the testimony of Ms. Tembi and her friend, Doris Yunmbam, who testified for Bar Counsel, and not that of Respondent, who took the stand on his own behalf. Briefly, Ms. Tembi and Ms. Yunmbam testified that Ms. Tembi had paid Mr. Ukwu $1200 in counsel fees, an amount which had been collected for Ms. Tembi from members of the Cameroonian community. According to Ms. Yunmbam, Mr. Ukwu had counted the money in the women's presence. Respondent, on the other hand, denied that he had ever received the $1200. The Committee also found that Respondent had never written, and that Ms. Tembi had never received, certain letters allegedly warning Ms. Tembi that Respondent would withdraw from her case unless Ms. Tembi paid the $1200.*fn12
The Hearing Committee having credited the two women and disbelieved Mr. Ukwu, the Board's ultimate findings on the issue were supported by substantial evidence. Accordingly, we sustain the finding of the Board that Respondent violated Rule 8.4 (c) vis-avis Ms. Tembi.*fn13
Either Respondent or an unlicensed assistant in Respondent's office drafted a letter dated January 6, 1999, signed by George Udeozor, Chief Executive Officer of Optimum Care Medical Center, Inc., and addressed to the Immigration and Naturalization Service (INS). This letter read, in pertinent part, as follows:
Re: Employment Verification for Toyin Asiegeme [sic]
Dear Sir or Madam: We wish to confirm that Ms. Toyin Aseigeme [sic] referenced above, is currently employed full time by our clinic, and has been since February 1, 1998. Ms. Asiegeme [sic] is a Registered Nurse who has carried our [sic] her duties diligently. Her rate of pay at this time is $18.00 per hour.
Should you have any further questions, you may contact the undersigned. Sincerely, Optimum Care Medical Center, LLC
It is undisputed that the contents of this letter were false.*fn14 Ms. Asegieme was not employed by Optimum on January 6, 1999, nor had she been employed there on February 1, 1998, as asserted in the letter, or at any other time. She had not carried out her duties "diligently," for she had no duties to carry out. Her rate of pay was not $18.00 per hour; indeed, Optimum was not paying her anything.
The Hearing Committee found that this letter "was submitted to INS by Ms. Asegieme pursuant to Respondent's instruction, when she was in fact not then currently employed." The Board, in its Finding of Fact No. 65, wrote that Respondent "assur[ed] Ms. Asegieme that she should not be concerned about presenting INS with a letter on Optimum Care Medical Center, LLC letterhead that stated she was currently employed by Optimum - - her erstwhile sponsor - - when in fact she was not currently so employed." (Emphasis added.) Ms. Asegieme testified unequivocally that Respondent was aware that she was not employed by Optimum, that she expressed her concern to him about the untruthfulness of the statements in the letter, but that Ukwu simply told her not to worry about it.
In spite of the presentation to the INS, at Respondent's direction, of this totally false letter, neither the Hearing Committee nor the Board found that Mr. Ukwu's conduct violated Rule 8.4 (c). According to the Hearing Committee, there was "conflicting and uncorroborated testimony on both sides as to whether Respondent was aware of the fact that Ms. Asegieme was not then currently employed." The Committee added that "there is not sufficiently clear and convincing evidence to find a violation." The Board accepted this explanation by the Hearing Committee. We do not agree.
It is true that there was "conflicting testimony." Respondent did in fact, claim that he was unaware that Ms Asegieme was not employed by Optimum. But if - - and it is a very big if - - Mr. Ukwu really had not known, he demonstrably should have known, but he obviously made no effort to find out.*fn15 It was Respondent who directed Ms. Asegieme to present the letter to the INS, and it was therefore his responsibility to know whether the letter was true or false. It cannot be gainsaid that if he had bothered to ask Ms. Asegieme whether she was working for Optimum, and whether she had been so employed since February 1998, as the letter stated, she would have told him that she had not. There is no suggestion in the record that the information in the January 6, 1999 letter came from Ms. Asegieme; on the contrary, the contents were known by Ms. Asegieme to be false. It was Respondent or one of his unlicensed assistants who procured the letter from Optimum, and who required Ms. Asegieme to pay for it (a practice criticized by Bar Counsel's expert witness, Michael Maggio, as inappropriate).*fn16 The client had nothing at all to do with the securing of the letter, and she testified that Mr. Ukwu even chided her for telephoning Optimum.
Rule 8.4 (c) is not to be accorded a hyper-technical or unduly restrictive construction. In In re Hager, 812 A.2d 904 (D.C. 2002), we stated:
We have given a broad interpretation to Rule 8.4 (c), as recapitulated recently in In re Arneja, 790 A.2d 552, 557 (D.C. 2002). "[Dishonesty] encompasses conduct evincing 'a lack of honesty, probity, or integrity in principle; [a] lack of fairness and straightforwardness . . . .'" In re Shorter, 570 A.2d 760, 767-68 (D.C. 1990) (per curiam) (citation omitted); accord, Slattery, supra, 767 A.2d at 213. See In re Carlson, 745 A.2d 257, 258 (D.C. 2000) (per curiam) (dishonesty may consist of failure to provide information where there is duty to do so); In re Jones-Terrell, 712 A.2d 496, 499-500 (D.C. 1998) (violation found despite "lack of evil or corrupt intent"); In re Reback, 487 A.2d 235, 239 (D.C. 1985) (per curiam), vacated but adopted and incorporated in relevant part, 513 A.2d 226 (D.C. 1986) (en banc) (dishonesty in filing second complaint to replace one dismissed because of negligent inattention.). "Dishonesty" is also the most general term in Rule 8.4(c), "encompassing fraudulent, deceitful, or misrepresentative behavior," In re Wilkins, 649 A.2d 557, 561 (D.C. 1994) (per curiam), but also applying to conduct not covered by the latter three terms, which describe "degrees or kinds of active deception or positive falsehood." Shorter, supra, 570 A.2d at 768. Indeed, it has been suggested that sufficiently reckless conduct is enough to sustain a violation of the rule. Jones-Terrell, supra, 712 A.2d at 499.
Id. at 916; see also In re Cleaver-Bascombe, 892 A.2d 396, 404 (D.C. 2006) ("an attorney who recklessly maintains inadequate time records, and consciously disregards the risk that she may overcharge a client (or here, the CJA fund), also engages in dishonesty within the meaning of Rule 8.4 (c).") Thus, even if Respondent's conduct was in reckless disregard of the truth rather than specifically intended to deceive - - a rather dubious hypothesis on this state of facts, and in light of the Board's Finding No. 65 - - he would have violated Rule 8.4 (c).
Under these circumstances, the question before us is one of law, subject to de novo review. Specifically, we must determine whether, under the standard articulated in Hager, a Respondent violated Rule 8.4 (c) by directing a client to file with the IRS a letter containing representations that Respondent, at a minimum, should have known were false, and by reassuring her not to worry about it. We conclude as a matter of law that he did.*fn17
III. RULE 1.3 (b): INTENTIONAL FAILURE TO SEEK THE CLIENT'S OBJECTIVES; INTENTIONAL PREJUDICE OR DAMAGE TO A CLIENT DURING THE COURSE OF THE PROFESSIONAL RELATIONSHIP
Adopting the views of the Hearing Committee, the Board found that Respondent had violated Rule 1.3 (b) in his representation of Ms. Tembi, but not in any of the other cases. Bar Counsel contends, to the contrary, that Respondent "intentionally prejudiced the interests of all five of his clients, in violation of Rule 1.3 (b)." The issue is a difficult one, and we believe that the Board has recited the evidence comprehensively and impartially. We differ with the Board, however, with respect to an underlying assumption on which its conclusion is apparently based, namely, that the determination whether the neglect was intentional with respect to a particular client must be based solely on the evidence relating to that client. Because we do not accept that premise, we are unable to agree with the Board's conclusion.
The Board summarized as follows the evidence relevant to the question whether Rule 1.3 (b) was violated in Mr. Ukwu's representation of clients other than Ms. Tembi:
Insofar as relevant to the Rule 1.3(b) charges, the [Hearing Committee's] findings establish that Respondent --failed in the Madagu case to give his client advance notice of an Immigration Court hearing on June 23, 1999, failed to prepare him for the June 1999 hearing, failed to appear at a November 1997 interview, failed to file documentation necessary to support his client's medical reasons for rescheduling a hearing set for May 19, 1999, and failed to appear at a hearing on June 23, 1999; failed in the Malinda Davies case to explain to his client the serious adverse consequences of filing a political asylum claim as he advised, when she had pending an application for "diplomatic asylum" as the widow of a former Nigerian diplomat, failed to explain to his client the purpose of an Immigration court hearing on March 11, 1998 or to "prepare her for what to expect that day," and failed to return his client's repeated telephone calls to "find out about the status of her case"; failed in the Owanate Davies case to prepare his client or to appear for a hearing before the Immigration Court on April 5, 1999, for which he also failed to prepare his client, failed to failed to file a witness list and failed to submit any documentary evidence; failed in the Asegieme case to withdraw a political asylum claim that previously had been filed by another lawyer, after assuring his client that he would do so, failed to prepare his client for an INS interview scheduled for June 23, 1999, and failed to appear for INS interviews on January 6, 1999 and June 23, 1999. (Citations to Findings omitted.) The Board also perceptively summarized a feature that all five cases had in common:
A theme running through the five client matters has Respondent failing in every case to prepare the client for an Immigration Court hearing or an INS interview, even failing in some cases to notify the client of a hearing or interview, failing to advise the client what the hearing or interview would be about, failing to return calls from clients who want to get prepared for hearings and interviews and, in some cases, failing even to appear at hearings to represent the client. The Hearing Committee, in four of the five cases attributed those recurrent failures to Respondent's "slipshod" manner and his failure to devote sufficient "time and attention to representing these five clients" (HC Report at 41), but concluded in each case that the evidence was not sufficient to establish intentional conduct on Respondent's part.
The Board then made it clear that, notwithstanding the frequency of neglect, each representation stood on its own footing for purposes of determining whether the neglect was intentional:
With regard to the other failures listed above,*fn18 Respondent's conduct appears to have been consistently negligent, as the Hearing Committee found. But the question remains whether those failures are "so pervasive that [Respondent] must be aware of [his neglect]" [In re] Lewis, 689 A.2d , 564 (D.C. 1997) (per curiam) [(Appendix Board Report)]. None of the failures, taken by itself, was necessarily an intentional failure on the part of Respondent to seek the lawful objectives of his clients. Moreover, the aspects of Respondent's representations that can be said to pervade those cases are his failure to prepare his clients for the hearings and interviews they faced and his failure to return their telephone calls. Neither failing is so prevalent in any one of the representations that he must have been aware of it. Neither thus can be deemed to amount to an intentional failure to seek the client's lawful objectives or an intentional prejudicing of the client, the conduct that must be present for a violation of Rule 1.3(b). (Emphasis added.)
In assessing the determination by the Hearing Committee and the Board that, except as to the Tembi representation, Bar Counsel failed to prove a violation of Rule 1.3 (b), we apply our own now-familiar 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.
Cleaver-Bascombe, 892 A.2d at 401-02.
Turning to the substance of what Bar Counsel was required to prove, we note that "while the 'hallmark' of a Rule 1.3 (b) violation is that the neglect was intentional, the Rule does not require proof of intent 'in the usual sense of the word.' Rather, 'neglect ripens into an intentional violation when the lawyer is aware of his neglect of the client matter,'" In re Mance, 869 A.2d 339, 341 n.2 (D.C. 2005) (quoting Lewis, 689 A.2d at 564); or, put differently, when a lawyer's inaction coexists with an awareness of his obligations to his client. In re O'Donnell, 517 A.2d 1069, 1072 (D.C. 1986) (per curiam) (adopting Board Report appended to opinion).
Significantly, for present purposes, intent may also be inferred where the neglect is "so pervasive that the lawyer must [have been] aware of it." Lewis, 689 A.2d at 564. In its brief in this court, the Board has agreed that "the entire fabric of circumstances . . . must be evaluated in deciding whether inaction constitutes intentional abandonment." Further, the Board has agreed that "[k]nowing abandonment of a client is the classic case of a Rule 1.3 (b)(1) violation." Lewis, 689 A.2d at 564.
We have no quarrel with the findings of evidentiary fact made by the Hearing Committee and adopted by the Board with respect to Respondent's intent. As we have previously noted, however, we do not agree with the underlying legal premise on which the Committee and the Board apparently formed their conclusion, namely, that in determining Respondent's intent vis-a-vis a particular client, only the record as to that client is to be taken into account.
Intent must ordinarily be established by circumstantial evidence, and in assessing intent, the court must consider the entire context. "A play cannot be understood on the basis of some of its scenes, but only on its entire performance." Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990). "In discrimination cases, among many others, it is generally in the interests of justice that the trier of fact 'consider the entire mosaic.'" Carter-Obayuwama v. Harvard Univ., 764 A.2d 779, 794 (D.C. 2001) (citations omitted). In In re Shillaire, 549 A.2d 336 (D.C. 1988), a disciplinary proceeding in which the respondent attorney claimed that certain threatening remarks that he had made to a witness, which remarks represented the basis of the charge against him, were an isolated incident, we held that uncharged statements to third parties should have been included in the Board's calculus, because they "shed light" on the intent with which Shillaire threatened at the courthouse to do in his accuser, and thus "tend reasonably to show the purpose and character of the particular transactions under scrutiny." FTC v. Cement Institute, 333 U.S. 683, 705 (1948). "Events obscure, ambiguous or even meaningless when viewed in isolation may, like the component parts of an equation, become clear, definitive and informative when considered in relation to other action." Local Lodge No. 1424, Int'l Ass'n of Machinists v. NLRB, 362 U.S. 411, 416 n.6 (1960). Under conventional evidentiary principles, the statements to third parties are surely relevant to Shillaire's motive and intent. Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964).
Id. at 345 (emphasis added).
More recently, in In re Godette, 919 A.2d 1157 (D.C. 2007), the Hearing Committee found, inter alia, that the respondent had purposefully evaded service of a disciplinary complaint by failing to come to his door when a process server knocked at various times of day and night. The Board set aside the Committee's finding, concluding that Bar Counsel had failed to show by clear and convincing evidence that the respondent was at home on any of the occasions when personal service was attempted. In holding, contrary to the Board's view, that the Hearing Committee's finding was supported by substantial evidence, a majority of this court made it clear that the Board should have considered the respondent's repeated earlier failures to answer or acknowledge mail sent to him by Bar Counsel as bearing on the issue whether, thereafter, he deliberately evaded personal service. Relying on Local Lodge No. 1424 and Shillaire, we explained that the respondent's earlier conduct shed light on what had probably really happened when personal service was attempted at the respondent's home. We stated that the Hearing Committee was not obliged to attribute to coincidence the failure of anyone to open the door on each of the occasions, on different days, when the process server came to Godette's home. "Coincidences happen, but an explanation not predicated on happenstance is often the one that has the ring of truth." Burwell v. United States, 901 A.2d 763, 770 (D.C. 2006) (citations omitted).
Under the "one client-at-a-time" approach apparently utilized in this case by the Hearing Committee and the Board, Respondent's repetition of similar violations in each of the five cases is treated as irrelevant in determining whether intent was proved in any of the other cases. Thus, although, in the Board's words, "[a]theme running through the five client matters has Respondent, [inter alia] failing in every case to prepare the client for an Immigration Court hearing or an INS interview" (emphasis added), this consistent theme is regarded by the Board as having no bearing on Respondent's intent. In our view, this mode of analysis cannot be reconciled with our decisions in Shillaire or Godette.*fn19
If, as we have concluded, the Hearing Committee and the Board were required to consider the "entire mosaic " - - all five representations - - in determining whether Rule 1.3 (b) was violated,*fn20 then the finding by the Board regarding the consistent "theme" common to all five cases comes very close to a determination that the "neglect [was] so pervasive that [Respondent] must have been aware of it." Indeed, it would not be unreasonable to conclude, based on the Board's own findings, that Bar Counsel proved the requisite intent as that term is used in our case law. Nevertheless, and especially since Respondent contested each of the charges of Rule 1.3 (b) violations, and the Board and the Hearing Committee have never considered, under the standard set forth in this opinion, Respondent's defenses to the various individual claims of intentional neglect, we conclude that if a finding as to Rule 1.3 (b) were essential to the final disposition of this case, a remand to the Board - - the action that we took in Godette - - would be appropriate here. For the reasons set forth in Part IV, infra, however, we have determined that under the unusual circumstances of this case, a remand is not necessary.*fn21
The Board, as we have noted, initially recommended that Respondent be suspended for one year, with reinstatement conditioned upon proof of fitness and on the payment of restitution with interest. At oral argument, however, counsel for the Board indicated (as we understand her representation) that, if the court concludes, based on the findings of the Hearing Committee, that Respondent did not testify truthfully, then a suspension for two years, with the same conditions for reinstatement, would be appropriate.*fn22 The revised recommendation resulted from this court's decision in In re Cleaver-Bascombe (which was issued after the Board's Report in this case) and on the Board's subsequent recommendation, on remand, of a significantly more severe sanction for the respondent in Cleaver-Bascombe. In Cleaver-Bascombe, we emphasized that in proposing the appropriate discipline, the Board should have included in its calculus the truthfulness or lack thereof the respondent's testimony before the Hearing Committee. 892 A.2d at 412-13. We relied, in that connection, on United States v. Grayson, 438 U.S. 41, 50-54 (1978), in which the Supreme Court held that a criminal defendant's untruthful trial testimony may properly be considered by the sentencing judge in determining the defendant's punishment. The finding by the Hearing Committee, adopted by the Board, that notwithstanding Respondent's denials, Ms. Tembi did pay him $1200 in cash, and that related letters submitted by Respondent were never sent, necessarily means that Respondent's testimony was untruthful; Mr. Ukwu could hardly have "forgotten" that Ms. Tembi paid him in cash.*fn23
Bar Counsel has recommended that Respondent be disbarred or suspended from practice for three years (with the same conditions for reinstatement as those proposed by the Board). Bar Counsel's selection of a suspension as one of two alternative proposals, with the lesser of the sanctions emphasized at oral argument, strongly suggests that he is not pressing for disbarrment. As we noted in Cleaver-Bascombe, 892 A.2d at 412, our disciplinary system is adversarial, and the imposition of a sanction harsher than that proposed by Bar Counsel should be the exception rather than the norm. Under the circumstances here presented, we do not believe that this is an appropriate case for outright disbarrment.
For the reasons stated by the Board, however, we conclude that, whatever the duration of Respondent's suspension, he must be required to prove his fitness to practice, and to pay restitution with interest, before being reinstated. Indeed, our conclusion that Respondent violated Rule 8.4 (c) when he assured Ms. Asegieme that she need not worry about the false statements in the letter from Optimum, and thus induced her to present a false letter, as well as the substantial evidence that Respondent's pervasive neglect amounted to intentional misconduct, reinforce our view that the sanction in this case should include a proof of fitness requirement. See generally In re Cater, 887 A.2d 1, 24 (D.C. 2005) (articulating applicable legal standard).*fn24
Finally, we consider the appropriate period for which Respondent should be suspended. We note at the outset that the Board is now proposing a suspension for two years, Bar Counsel asks us to add one more year. We take judicial notice, however, of the reality that the process of reinstatement based on an attempted showing of fitness may take approximately eighteen months, and that this "imposes a heavy burden on the disciplined attorney." In re [Sonya] Steele, 630 A.2d 196, 201 n.5 (D.C. 1993). Even if Respondent seeks reinstatement, and even if he is successful in proving fitness - - a task, as we have noted, that may not be an easy one - - he probably will still have been suspended, as a practical matter, for three years or more.
We are required by D.C. Bar R. XI, § 9 (g)(1) to impose the discipline recommended by the Board "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would be unwarranted." Section 9 (g)(1) "endorses the Board's exercise of broad discretion in handing out discipline that is subject only to general review for abuse in that discretion's exercise." In re Arneja, 790 A.2d 552, 558 (D.C. 2002) (citations omitted); see also In re Soininen, 853 A.2d 712, 723 (D.C. 2004). 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); Cleaver-Bascombe, 892 A.2d at 402. "Generally speaking, if the Board's recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed." Soininen, 853 A.2d at 723 (quoting In re Goffe, 641 A.2d 458, 463-64 (D.C. 1994)).
In this case, although the Board did not issue an amended Report and Recommendation, we do not doubt that counsel for the Board had authority to speak for the Board when she indicated that if Respondent testified untruthfully before the Hearing Committee, a two-year suspension would be appropriate and acceptable to the Board. Comparisons between different disciplinary cases are frequently difficult, and this is particularly true in the present instance because of the number of complainants and the complexity of the issues and of some of the findings. Sanctions imposed by the court in this kind of situation have varied in light of the particular facts of each case. Some authority could doubtless be cited for the proposition that the Board's revised recommendation is too lenient, see, e.g., In re Foster, 699 A.2d 1110, 1111-12 (D.C. 1997) (disbarrment) and In re (Eric) Steele, 868 A.2d 146, 154-55 (D.C. 2005) (three years suspension with "fitness"); while some cases might be viewed as suggesting that it is too harsh, see, e.g., In re Ryan, 670 A.2d 375, 379-81 (D.C. 1996) (four months suspension with "fitness"). In the final analysis, we conclude that the Board's recommended sanction, as revised - - suspension for two years, with reinstatement conditioned on proof of fitness and payment of restitution with interest - -"falls within a wide range of acceptable outcomes." Goffe, 641 A.2d at 463-464. Accordingly, we adopt it.
For the foregoing reasons, Lloyd F. Ukwu is suspended from practice in the District of Columbia for a period of two years. As a condition of reinstatement at the conclusion of his suspension, Mr. Ukwu must
1. Establish his fitness to practice law pursuant to D.C. Bar R. XI, § 16; and
2. Pay restitution in the following amounts: $2,000 to Michael Madagu; $5,855 to Toyin Asegieme; and $2,000 to Esther Tembi; with interest of 6% per annum from the date of each client's payment.
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
These five matters come before the Board on Professional Responsibility on review of the Report and Recommendation of an Ad Hoc Hearing Committee. The charges arise from Respondent's representation of five foreign nationals over a four-year period ending in 1999 regarding their cases before the Immigration and Naturalization Service ("INS"), the Immigration Court and the Board of Immigration Appeals ("BIA") under the immigration laws. The Hearing Committee found that he violated four Rules of Professional Conduct - Rules 1.1(a), 1.1(b), 1.3(a) and 1.4(a) - in the course of each representation. With respect to one representation, the Hearing Committee found that Respondent also violated Rules 1.3(b)(1), 1.3(b)(2), 1.4(b), 3.3(a)(1) and 8.4(c). Based on these violations, the Hearing Committee recommended that Respondent be suspended for eighteen months with his reinstatement conditioned upon (1) a showing of fitness to practice law and (2) payment of restitution to three of the former clients wronged by his violations.
Respondent and Bar Counsel both filed exceptions to the Hearing Committee's report. With respect to the violations, Respondent takes issue only with the Hearing Committee's finding that he violated Rule 8.4(c). As for the sanction, he contends that neither the suspension nor the condition that he demonstrate fitness for reinstatement are appropriate. Bar Counsel, on the other hand, urges that, along with the violations found by the Hearing Committee, Respondent be found to have violated additional rules as charged in the specifications of charges and that he be either disbarred or suspended for three years with a fitness requirement, and in either case, required to pay restitution to three of his former clients, with interest, as a condition for his reinstatement.
With regard to the violations as to which the Hearing Committee's findings are in dispute, we agree with the Hearing Committee's finding that Respondent violated Rule 8.4(c) and, in addition, conclude from the Hearing Committee's findings and the evidence that he also violated Rule 1.3(c) and Rule 8.4(d). We recommend that he be suspended for one year with reinstatement conditioned on a demonstration of fitness and payment of restitution to three of his former clients.
Neither Bar Counsel nor Respondent filed any exception specifically directed to the findings of the Hearing Committee. Bar Counsel has requested three additional findings, which are discussed infra, pp. 27-29, and which we decline to make. We therefore generally adopt the findings of the Hearing Committee, with minor exceptions. Those findings are supported by substantial evidence and are restated herein with the record citations given by the Hearing Committee; our exceptions are indicated in footnotes.
1. Respondent is a member of the District of Columbia Bar, having been admitted on October 13, 1989 and assigned Bar Number 420617. BX A.
2. Respondent practices through a firm entitled Ukwu & Associates primarily in the field of immigration law, but his practice also includes divorce, criminal law and personal injury. 4 Tr. at 59-60 (Respondent).*fn26
A. COUNT I: MICHAEL MADAGU (BAR DOCKET NO. 454-99)
2. Michael Madagu, originally from Nigeria, was introduced to Respondent through a friend because he needed assistance in filing a political asylum claim. 1 Tr. at 124-27 (Madagu). Mr. Madagu signed a retainer agreement on October 2, 1997, with Respondent agreeing to prepare and file an application for political asylum on Mr. Madagu's behalf, and he paid a fee of $2,000. 1 Tr. at 128-29, 170 (Madagu); BX 1A, 6A at 2, 6B; 4 Tr. at 82 (Respondent). Respondent filed an asylum application on behalf of Mr. Madagu, dated September 25, 1997, which was stamped received by INS on October 6, 1997. 1 Tr. at 129-30 (Madagu); BX 1B, BX 6A at 2.
3. On October 31, 1997, Mr. Madagu married his girlfriend of more than one year, Vanessa Samuels, a United States citizen. 1 Tr. at 134, 191-92 (Madagu). Respondent was aware that Mr. Madagu had married Ms. Samuels because Mr. Madagu informed him at the time it occurred. 1 Tr. at 135 (Madagu).
5. By notice dated October 28, 1997, INS scheduled Mr. Madagu for an interview on November 18, 1997, in connection with his asylum petition.*fn27 BX 1C.
6. Respondent did not appear for the asylum interview on November 18.*fn28 Respondent at no time prior to the scheduled November 18th interview filed for an adjustment of status for Mr. Madagu based on his marriage to Ms. Samuels, although neither the INS nor anybody else ever challenged the bona fides of the marriage. 1 Tr. at 133, 135, 199 (Madagu); 208 (Elliot); 3 Tr. at 175 (Maggio). Such a course of action would have been clearly preferable because adjustment of status based on a bona fide marriage to a U.S. citizen has a far greater chance of being successful than an asylum application. 3 Tr. at 150 (Maggio).
8. On December 11, 1997, the INS issued a notice stating that it had not granted Mr. Madagu's claim for asylum because he had "failed to appear for [his] scheduled asylum interview, or failed to provide a competent interpreter, and did not show good cause" and referred his case to an Immigration Judge. BX 1E.
9. Respondent's failure to appear at the November 18th hearing led to Mr. Madagu being placed in removal (deportation) proceedings.*fn29 BX 1E; 1 Tr. at 207 (Elliot); 3 Tr. at 171 (Maggio).
10. By the time Mr. Madagu received a "Notice of Hearing in Removal Proceedings" in Immigration Court, dated February 11, 1998, which scheduled a Master Hearing on June 24, 1998 (BX 1F), Respondent, at Mr. Madagu's request, had applied for an adjustment of status (green card) for Mr. Madagu based on his marriage to Vanessa Samuels. 1 Tr. at 134-35, 138, 141 (Madagu); BX 1N at 45. The June 24th hearing ultimately was rescheduled, although Respondent did not explain to Mr. Madagu why it was rescheduled. 1 Tr. at 138-39 (Madagu).
11. On February 24, 1999, the Immigration Court issued a "Notice of Hearing in Removal Proceedings" setting a hearing for May 19, 1999. BX 1G; 1 Tr. at 140 (Madagu). Respondent did not prepare Mr. Madagu for the hearing. 1 Tr. at 142 (Madagu).
12. The May 19th hearing did not go forward because Mr. Madagu was ill. 1 Tr. at 143 (Madagu). Mr. Madagu had seen a doctor on May 14th for a respiratory problem and informed Respondent that he would be unable to attend the hearing. 1 Tr. at 145-46 (Madagu); BX 1O at 67. Respondent attended the hearing and afterward informed Mr. Madagu that the hearing would be rescheduled ...