The opinion of the court was delivered by: Ruiz, Associate Judge
A Member of the Bar of the District of Columbia Court of Appeals On Exception of Respondent to the Report and Recommendation of the Board on Professional Responsibility (BDN403-97)
Before RUIZ and REID, Associate Judges, and SCHWELB, *fn1 Senior Judge.
In this original disciplinary proceeding, the Board on Professional Responsibility has recommended that Scott Slaughter be suspended from the practice of law for three years with reinstatement conditioned upon a showing of fitness based on findings by a Hearing Committee that respondent had violated Rule 8.4 (b) by committing one or more criminal acts (forgery) that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, and Rule 8.4 (c) by engaging in conduct involving dishonesty, fraud, deceit, and/or misrepresentation. Respondent excepted to the Board's findings, conclusions, and recommended sanction arguing that: (1) the disciplinary proceeding violated applicable Arkansas ethical rules; (2) the Board failed to consider or give sufficient weight to "undisputed" evidence and relied on other evidence that should have been excluded or given no weight; (3) respondent's due process rights were violated; and (4) the Board erred in finding respondent guilty of committing a crime when he has not been convicted of the crime by a criminal court. We accept the Board's findings and recommendation and suspend respondent from the practice of law for three years with reinstatement conditioned upon a showing of fitness.
The Board adopted the following findings of the Hearing Committee concerning the events that give rise to the disciplinary charges. Respondent was hired by the law firm Ungaretti & Harris ("firm") in June 1994 to work in the firm's Washington, D.C. office as a salaried partner. Before joining the firm, respondent had represented the receiver from a defendant in a Superfund litigation pending before the United States District Court for the Eastern District of Arkansasand continued to do so until approximately January 1996. The state of Arkansas also was party to the Superfund litigation. During the pendency of the Superfund litigation, respondent and counsel for the state, Charles Moulton, Assistant Attorney General for the State of Arkansas, worked closely together, but respondent never represented Arkansas in the Superfund litigation.
In August 1994, shortly after respondent joined the firm, he entered into a consulting contract with the state of Arkansas to provide legal assistance as an environmental specialist relating to the state's natural resources damage claims. By its terms, the contract was limited to one year, beginning August 3, 1994, and could not exceed $4,999. In June 1994, however, before the consulting contract had been signed, respondent began billing his time at the firm for work relating to the state's natural resource damage claims. Prior to signing the contract, respondent consulted with Mr. Moulton on a regular basis and continued to do so after the contract had expired. The firm was aware of the consulting contract and of respondent's work for the state pursuant to the contract. In addition, the firm's records listed Charles Moulton as a client.
At some point during the summer of 1994, respondent also began doing work for two private plaintiffs, the McCoys and the Sheltons, in the natural resource damage litigation. These private plaintiffs, however, were not listed as firm clients in 1994 and respondent did not segregate his time for services relating to their matter from the services rendered to the state. Apparently, there was no retainer agreement with either private plaintiff until some time in 1995. Because respondent never asked the firm to open a separate billing account for the private plaintiffs, he billed all of his time relating to the natural resource damage claims -- including his work for the private plaintiffs -- to the state from 1994 to 1997.
On January 17, 1995, respondent wrote a memorandum addressed to Richard Ungaretti, a name partner of the firm, where he explained that the state had agreed to retain respondent on a contingency basis. In the memo, respondent provided details of settlement efforts and asserted that the state agreed to a contingency fee of 30% of what it recovered through settlement or judgment. As a result, the firm would forgo billing the state on an hourly basis. On January 31, 1995, respondent presented to the firm a letter agreement between the firm and the state. The letter was addressed to Charles Moulton at the Office of the Arkansas Attorney General and confirmed that the firm had been retained as outside counsel to the State in the Superfund litigation. Specifically, the letter provided that the State would pay the firm 30% of its recovery on its natural resource damage claims either through settlement or judgment, and that all previous agreements regarding the firm's representation of the state would become void upon the state's countersigning the letter. Based on respondent's representations and the letter agreement, the firm agreed to represent the state on a contingency basis. The Hearing Committee credited the contrary testimony of Mr. Moulton, however, that the State had not agreed to retain the firm on a contingency basis or on any other basis to litigate its natural resource damage claims. The Hearing Committee also found that respondent forged Mr. Moulton's signature on the letter agreement he presented to the firm.
In 1995 or early 1996, the firm's Executive Committee asked J. Timothy Eaton, who headed the firm's litigation department, to review the status of the firm's representation of the state because none of the firm's litigation partners had been involved in the matter. During a meeting with respondent, Mr. Eaton reviewed a draft of a complaint on behalf of the state. In addition, respondent discussed adding private plaintiffs to the action who would have standing to assert certain types of damages that the state would not claim, and represented that he had already consulted with the state, which agreed to the addition of individual plaintiffs.*fn2 According to Mr. Eaton's testimony, this was the first time he had personal knowledge that individual plaintiffs would be added to the state's lawsuit. Based on respondent's representations and its belief that it already was representing the state in the litigation, the firm agreed to represent the individual plaintiffs.
On June 12, 1996, respondent filed a complaint before the Circuit Court of Pulaski County, Arkansas, on behalf of the individual plaintiffs. On June 14, 1996, the state filed a motion to intervene in the case and an original complaint in intervention, signed by Mr. Moulton and another Assistant Attorney General for the State. The complaint was served on respondent as counsel for the individual plaintiffs. Respondent created an additional signature page with a signature above his name and that of the firm as "Counsel for the State of Arkansas," attached it to his copy of the state's intervention papers, and redacted the certificate of service to make it appear that copies of the state's pleadings had been served on respondent and his co-counsel in this capacity. Respondent, who maintained the firm's file for the natural resource damage litigation, then placed the copy of the state's pleadings -- with the added phony appended signature page and redacted certificate of service -- in the firm's file. Mr. Eaton testified that as of June 1996, he was not aware that respondent had filed a complaint in state court on behalf of the individual plaintiffs only and not on behalf of the state.
In August 1996, Thurman Bennett, Jr., the former manager of the Vertac Chemical Corporation plant and one of the defendants named in the complaint, moved to disqualify respondent and the firm based on respondent's previous representation of Vertac's receiver. Other defendants in the court action (Dow Chemical Co. and Hercules Inc.) filed pleadings in support of the motion to disqualify respondent as counsel for the private plaintiffs. On November 8, 1996, the court disqualified respondent and the firm from further participation in the action, and the private plaintiffs filed a motion for voluntary non-suit of the claims against Mr. Bennett. On February 14, 1997, the private plaintiffs filed a motion for voluntary non-suit against the remaining defendants, which the court granted, and the same day refiled their claims in the U.S. District Court. Meanwhile, the state had already filed its own claims in federal court in a separate action and continued its action in state court.
In January or February 1997, Mr. Eaton traveled to Arkansas to determine the status of the litigation. Although respondent had advised the firm that one of the defendants was trying to disqualify him, respondent assured Mr. Eaton that it did not present a problem. After reviewing the court files and meeting with the firm's local counsel, Mr. Eaton learned for the first time that the state court had disqualified respondent and the firm the previous November. While in Arkansas, Mr. Eaton also reviewed the separate federal court actions that had been filed by the individual plaintiffs and by the state. Respondent explained that for strategic reasons he had separated the two plaintiffs when filing their actions in federal court. During this time, Mr. Eaton and the firm continued to believe that the state was a client of the firm. The firm, however, did not send periodic bills to the state because it believed that it had a contingent fee agreement.
In mid-August 1997, for reasons unrelated to the natural resources litigation, the firm discharged respondent and other attorneys employed in the environmental law department of the firm's Washington, D.C. office. Because respondent was to continue serving as counsel in the natural resources damage litigation, the firm asked Mr. Eaton to prepare and send lien letters to each of the named defendants to protect the firm's financial interest in the litigation. On August 25, 1997, the firm sent attorney lien notices to the defendants in the state and federal court litigation based upon the firm's services on behalf of the state and private plaintiffs. In the notices, the firm stated that it had entered into a contingency fee contract with the state and the individual plaintiffs entitling the firm to 30% of any recovery. A few days later, respondent called Mr. Eaton and explained that the firm's assertion of liens created a conflict of interest because the individual plaintiffs represented by the firm were objecting to the ...