December 31, 2009
IN THE MATTER OF: THEODORE S. SILVA, JR., RESPONDENT. A MEMBER OF THE BAR OF THE DISTRICT OF COLUMBIA COURT OF APPEALS
BOARD ON PROFESSIONAL RESPONSIBILITY
(Bar Registration No. 412894)
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
Respondent is before the Board on Professional Responsibility ("Board") on consolidated original and reciprocal disciplinary matters. The original matter relates to Respondent's admitted failure to complete work for a client, his subsequent falsification of the signatures of others, including falsely notarizing documents, and falsely advising his client and supervising partner that work had been completed. The Hearing Committee found violations of eight disciplinary rules and recommended that Respondent be disbarred. In re Silva, Bar Docket Nos. 077-06 and 062-08 at 54 (Hr'g Comm. Rpt. Jan. 26, 2009) ("H.C. Rep."). In reaching that recommendation, the Hearing Committee rejected Respondent's claim of mitigation under In re Kersey, 520 A.2d 321 (D.C. 1987) (en banc).
The reciprocal discipline matter arises out of Respondent's felony conviction in late 2002 in Arlington, Virginia, for possession of cocaine.*fn1 Respondent never reported that conviction to the Virginia State Bar Disciplinary Board (the "Virginia Board") or to Bar Counsel. After the Virginia Board learned of the conviction in 2007, it directed Respondent to show cause and noticed a hearing relating to the conviction. On January 22, 2008, Respondent entered into an Agreed Disposition with the Virginia Board pursuant to which the Virginia Board issued a Public Reprimand With Terms.*fn2 Bar Counsel advised the Court of the Virginia disciplinary action in February 2008, and on March 4, 2008, the Court referred the matter to the Board. Order, In re Silva,No. 08-BG-82 (D.C. Mar. 4, 2008). The two matters were consolidated pursuant to Bar Counsel's Unopposed Motion to Consolidate, which was granted by the Board on April 6, 2009.*fn3
Oral argument was held before the Board on April 9, 2009.
We recommend that Respondent be suspended for three years with a fitness requirement in connection with the original matter. With respect to the reciprocal disciplinary matter, we recommend that, in light of the Court's decisions in In re Filomeno, No. 07-BG-863 (D.C. Aug. 18, 2008) (per curiam), and In re Portner, No. 08-BG-28 (D.C. Feb. 4, 2009) (per curiam), the Court require Bar Counsel to publish the reprimand by the Virginia Board on the D.C. Bar Website in accordance with D.C. Bar. R. XI, § 11(c).
I. THE ORIGINAL MATTER (Bar Docket No. 077-06)
On June 29, 2007, Bar Counsel filed a Specification of Charges alleging that Respondent had violated Rules 1.3(a), (b) & (c), Rules 1.4(a) & (b), and Rules 8.4(b) & (c) in connection with his handling of a real estate transaction while he was a partner at the law firm of Holland & Knight. After obtaining several extensions of time, Respondent on November 6, 2007, filed his Answer and an Acknowledgement of Disability (or Addiction) ("Acknowledgement") in which he raised a Kersey defense in mitigation pursuant to Board Rule 7.6(a). In that Acknowledgement, he claimed that any misconduct was the result of his alcohol and cocaine addiction and his attention deficit disorder ("ADD") and depression. On December 4, 2007, the Board, acting pursuant to Board Rule 7.6(c), issued an Order, amended by an Order issued on December 10, 2007, conditioning Respondent's continued practice of law on his (i) abstaining from the use of alcohol and the recreational use of any drugs during the pendency of this proceeding, (ii) filing quarterly reports with the Board, with a copy to Bar Counsel, of the results of his random drug testing, and (iii) providing 30 days' notice to the Board and Bar Counsel of his intent to represent clients so that the Board can consider the appointment of a monitor to supervise his practice at that time. Order, In re Silva, Bar Docket No. 077-06 (BPR Dec. 4, 2007); Amended Order, In re Silva, Bar Docket No. 077-06 (BPR Dec. 10, 2007). Respondent is currently practicing as a contract attorney reviewing documents, Tr. 161,*fn4 and has not sought approval to represent clients.
The matter was assigned to Hearing Committee Number Seven which held prehearing conferences on October 1st and November 2, 2007, and a hearing on December 10, 2007. Respondent was represented by counsel. Prior to the hearing, the parties entered into a detailed stipulation in which Respondent admitted to the facts concerning his misconduct and admitted that his conduct violated Rule 1.3(a), Rules 1.4(a) & (b), and Rule 8.4(c). Joint Stipulations, filed Nov. 20, 2007 ("Joint Stipulations"). At the hearing, Bar Counsel called two witnesses, Mr. David Kahn, the partner at Holland & Knight with whom Respondent worked extensively, Tr. 25-30, 90, and Dr. Neil Blumberg, a forensic psychiatrist who testified as an expert witness. Bar Counsel offered 28 exhibits into evidence, BX A-D & BX 1-24,*fn5 which were admitted without objection. Tr. 22, 228, 241. Respondent testified on his own behalf and offered two exhibits into evidence, RX 1-2, which were also admitted without objection. Tr. 164, 170.
The Hearing Committee prepared a detailed and comprehensive report in which it held that Respondent had violated Rule 1.3(a) (duty to provide zealous and diligent representation within the bounds of the law), Rule 1.3(b)(1) (intentional failure to seek client's lawful objectives), Rule 1.3(b)(2) (intentional prejudice or damage to a client), Rule 1.3(c) (failure to act with reasonable promptness), Rule 1.4(a) (duty to keep a client reasonably informed as to the status of a matter and promptly comply with reasonable requests for information), Rule 1.4(b) (duty to explain a matter to a client so that the client may make informed decisions about the representation), Rule 8.4(b) (criminal conduct reflecting adversely on the lawyer's honesty, trustworthiness or fitness), and Rule 8.4(c) (dishonesty and misrepresentation). As noted, the Hearing Committee recommended that Respondent be disbarred.
Findings of Fact
The essential facts concerning Respondent's conduct are admitted in the Joint Stipulations and set forth in detail in the Hearing Committee's Findings of Fact. Those findings are supported by clear and convincing evidence and, except to the extent that they are clarified or modified by the findings below, we adopt them.*fn6
1. Respondent's Misconduct
Respondent was a real estate lawyer with the firm of Holland & Knight. He joined the firm in 1994 and was made a partner in 1995. FF 2, H.C. Rep. at 3. No later than 2003, Mr. Kahn asked Respondent to negotiate and prepare an Easement Relocation Agreement ("ERA") between their client, 15th & L Street Development, LLC (the "Client"), adjacent land owners and others to close an alley in connection with the redevelopment of certain property the Client had acquired on 15th and L Streets in Washington, D.C. FF 3-5, H.C. Rep. at 3-4. While Respondent started work on the ERA in a timely manner, meeting with counsel for the other parties, he never completed the ERA. Rather, he provided the Client with an ERA on which he signed the names of representatives of the adjacent landowners and other parties and signed the notarizations of those signatures using names of fictitious D.C. notaries. FF 7-13, H.C. Rep. at 5-8. Respondent also falsely assured Mr. Kahn and the Client that the ERA had been recorded in the land records of the District of Columbia. FF 16, H.C. Rep. at 8-9.
In reliance on Respondent's representations that the ERA was completed, the Client proceeded with closing and entered into a construction contract for the project. FF 17-18, H.C. Rep. at 9. In January 2006, Respondent provided the Client with a Construction Commencement Notice, as required by the ERA, purporting to give the other parties notice of the Client's intent to commence construction in 45 days. While he advised the Client that he had sent the notice to the other parties, he did not. FF 19-20, H.C. Rep. at 9-11. On January 27, 2006, an assistant to the Client's representative sent a copy of a revised Construction Commencement Notice to William Carmody, Esq., counsel for one of the adjacent land owners. FF 22, H.C. Rep. at 11.
On January 30, 2006, Mr. Carmody sent a letter by fax to Respondent, the Client and others involved in the transaction advising them that the ERA referenced in the Construction Commencement Notice did not exist. Mr. Carmody stated that his client had never agreed to the terms of an ERA, and that, until there was a valid agreement among the parties, the "rights and obligations of our respective clients continued to be governed by the existing easement agreements . . . .". BX 15; FF 23, H.C. Rep. at 11-12. Respondent sent an e-mail to the Client on the following morning assuring it that Carmody's fax was a misunderstanding and that he would straighten it out in the morning. FF 24, H.C. Rep. at 12. When the Client could not reach Respondent that day, it notified Mr. Kahn, who then confronted Respondent. Joint Stipulations, ¶19; FF 27, H.C. Rep. at 13.
Respondent admitted his actions and attributed them to stress, his use of cocaine and drinking. FF 24-27, H.C. Rep. at 12-13. Mr. Kahn notified the Client, undertook to cure the problems caused by Respondent's misconduct, and did so at a substantial cost to the law firm. Mr. Kahn did not bill the Client for the time required to cure the problems, the law firm agreed to reimburse the other parties for their costs in dealing with the situation and the firm agreed to pay the Client for its out-of-pocket damages due to Respondent's misconduct.*fn7 In total, Holland & Knight incurred approximately $150,000 in out-of-pocket expenses plus the value of the 50 hours Mr. Kahn devoted to curing the problems caused by Respondent's misconduct. FF 28-31, H.C. Rep. at 13-14. As a result of Mr. Kahn's efforts and delays in getting the Client's permits, the Client did not suffer any material injury as a result of Respondent's misconduct. FF 31, H.C. Rep. at 14.
2. Dealings With Bar Counsel
Holland & Knight suspended Respondent immediately after it learned of his actions and subsequently terminated him. FF 32, H.C. Rep. at 14-15. It also advised Respondent that his misconduct would have to be reported to Bar Counsel and suggested that he might wish to self-report. It delayed the filing of a complaint to allow Respondent to report first. FF 35, H.C. Rep. at 15. When Respondent had not reported the matter to Bar Counsel by March 10, 2006, over a month after his misconduct came to light, the firm reported Respondent to Bar Counsel. Respondent self-reported on March 15, 2006, FF 36-37, H.C. Rep. at 16, a month and a half after his misconduct was uncovered. In his letter to Bar Counsel, Respondent admitted that he had been a "regular cocaine user" for approximately ten years. He alleged that he had entered into a treatment program in 2003, which he "successfully completed," and that he began using cocaine again in 2005 but had not used cocaine since January 31, 2006. He also advised Bar Counsel that he had enrolled in an out-patient treatment program at Kolmac Clinic in 2006 that required him to submit to random drug tests. FF 38, H.C. Rep. at 16-17.
Most of what he told Bar Counsel was false.*fn8 He had
not stopped using cocaine but continued to use it through May 2006,
when he apparently ran out of money, after spending $20,000 to $30,000
of his 2005 bonus and his severance pay on cocaine.*fn9
He did not enroll in a treatment program in 2006, and he did
not submit to random drug testing. FF 39, H.C. Rep. at
17. Further, while he had entered a treatment program in 2004 as part
of his plea agreement with Virginia for possession of cocaine, he did
not "successfully complete" the program. Rather, he dropped out of the
after-care program, falsely representing to the clinic that his father
had died. FF 40, H.C. Rep. at 17-18.*fn10
3. Actions Before the Hearing Committee
On the day the hearing in this disciplinary proceeding was originally
scheduled to commence, Respondent filed his Answer and an
Acknowledgement in which he claimed that his misconduct would not have
occurred but for his disabilities. FF 41, H.C. Rep. at 18.*fn11
When he filed the Acknowledgement, he had not sought any
medical or psychological treatment for his disabilities, other than
the treatment as a result of his plea agreement. And, while he stated
Acknowledgement that he had been attending Alcoholics Anonymous ("AA")
and Narcotics Anonymous ("NA") meetings since January 2006, he did not
begin attending those meetings until November 2006, about the time he
filed his Acknowledgement. FF 42, H.C. Rep. at 19-20. He also admitted
to Dr. Blumberg and at the hearing that he used cocaine on three
occasions over a period of days in November 2006. Tr. 220-21; BX 22 at
4; FF 42, 54, H.C. Rep. at 19-20,
23.*fn12 He continued to consume alcohol. FF 42, H.C.
Rep. at 19-20. At the hearing, he testified that he ceased using
alcohol after receiving the Board's December 4, 2007 Order directing
him to abstain from the use of alcohol or any recreational drug. FF
55, H.C. Rep. at 23-24.*fn13
4. Kersey Claims in Mitigation
In order to raise a Kersey defense in mitigation, a respondent must demonstrate (a) by clear and convincing evidence that he suffers from the disability or addiction, (b) by a preponderance of the evidence that the misconduct would not have occurred but for the disability or addiction, and (c) that there is significant evidence of rehabilitation. See In re Stanback, 681 A.2d 1109, 1114-15 (D.C. 1996); Kersey, 520 A.2d at 327. Respondent asserts that he was addicted to cocaine and alcohol and suffered from ADD and depression.
a. Respondent's Claims of ADD and Depression
The Hearing Committee found that Respondent did not meet his burden of proof that he suffered from ADD or depression. FF 62-65, H.C. Rep. at 27-28. Aside from Respondent's statements concerning these afflictions, Respondent never introduced any additional evidence. On the other hand, Dr. Blumberg testified and stated in his report that Respondent's depression was situational and was not related to his misconduct. FF 63, H.C. Rep. at 27. Dr. Blumberg also testified that, based on Respondent's history and ability to handle complex legal matters, Respondent did not suffer from ADD or attention deficit hyperactivity disorder ("ADHD"). FF 65, H.C. Rep. at 28. Based on the record, we agree with the Hearing Committee that Respondent did not show by clear and convincing evidence that he suffered either from depression, ADD or ADHD.*fn14
b. Respondent's Alcohol Addiction
The Hearing Committee did not specifically address whether Respondent was addicted to alcohol. His testimony concerning his use of alcohol was inconsistent. He stated that he started drinking alcohol as a teenager and continued to drink until early December 2007. FF 55, H.C. Rep. at 23-24. He also testified that he used alcohol "every day or other day or so, although not to excess" and that "if I got buzzed once a month that would be about probably accurate, and drunk once a year. I never really drank much alcohol anyways [sic]." Tr. 167-68. Mr. Kahn tended to support the latter statement as he testified that he had never seen Respondent inebriated at work.
Based on the record and the Hearing Committee's findings concerning his use of alcohol, we conclude that Respondent did not bear his burden of demonstrating by clear and convincing evidence that he was addicted to alcohol. While Bar Counsel introduced evidence that he had been arrested for drunk and disorderly conduct in the late 1970s and early 1980s, BX 22 at 5, there is scant evidence that Respondent could not control his use of alcohol or that alcohol addiction was the cause of his misconduct. FF 56, H.C. Rep. at 24. What evidence there is concerning his use of alcohol is to the contrary. Further, even if Respondent had demonstrated that he was addicted to alcohol, he failed to satisfy the third element of Kersey since, except for an occasional AA meeting, he had never participated in any program for alcohol abuse until after the hearing, when, in December 2007, he entered a resident program at Second Genesis. FF 58, H.C. Rep. at 24-25.*fn15
c. Respondent's Cocaine Addiction
In his interview with Dr. Blumberg, Respondent admitted that he had
been using cocaine since college and that he was using cocaine daily
when he became a partner at Holland & Knight in 1995. FF 43, H.C. Rep.
at 20; BX 22 at 4. In July 2002, he pled guilty to felony possession
of cocaine and was sentenced to two years probation.*fn16
Respondent continued to use cocaine during the first year of
his probation, and entered treatment only when his probation officer
threatened to report him. Tr. 184, 336-37; BX 22 at 4. Respondent
participated in a two month out-patient program at Kolmac Clinic, but
did not carry through with his scheduled aftercare. FF 44-46, H.C.
Rep. at 20-21. In May 2005, after his probation had been completed,
the court in Virginia dismissed the criminal matter.*fn17
Respondent resumed using cocaine on a daily basis within a month and a
half. FF 48, H.C. Rep. at 22. While using cocaine during this period,
Respondent was in arrears on his child support payments.*fn18
At the time of the hearing, he was subject to a garnishment
order because of his failure to pay child support. FF 50, H.C. Rep. at
22. Respondent admitted that he had switched temporary employment agencies to avoid having his income
garnished. He also admitted that he had not filed income tax returns,
or extension requests, for three years. Id.
Respondent testified that cocaine helped him concentrate and, while it took him longer to complete his work, the work was "perfect." FF 51, H.C. Rep. at 22-23. These claims as to the substantive quality of his work were generally supported by Mr. Kahn, who was aware of his cocaine conviction but not his continued use. Tr. 74-77; FF 47, H.C. Rep. at 21. Mr. Kahn testified that the work was "the best" and "excellent." FF 52, H.C. Rep. at 23. Mr. Kahn also stated that there had never been a comparable event in the many years he had worked with Respondent. He testified that he would work with Respondent again and had tried to get the firm to allow him to use Respondent because of the quality of his work. Mr. Kahn stated that he "had never seen him do anything that was remotely like this" -- referring to the misconduct involved here. See, e.g., Tr. 88-89, 98-104.
Although the Hearing Committee did not make any express findings, the record is clear that Respondent was addicted to cocaine. However, the Court has made it clear that Kersey is inapplicable where the respondent relies on addiction to cocaine. In re Marshall, 762 A.2d 530 (D.C. 2000); In re Soininen, 783 A.2d 619 (D.C. 2001). Even assuming arguendo that Respondent could invoke a Kersey mitigation claim, he did not establish the second or third element of the Kersey burden with respect to his cocaine addiction. Based essentially on Dr. Blumberg's testimony, the Hearing Committee held that Respondent's substance abuse did not cause him to engage in the misconduct. FF 59-60, H.C. Rep. at 25-26. Dr. Blumberg noted that Respondent was able to do the work and that his product was excellent. If there was an impairment due to substance abuse, Dr. Blumberg testified it would have been more widespread. He also testified that Respondent knew that lying to his client was wrong, and that Respondent thought he could correct the matter without being caught. Respondent had explained to Dr. Blumberg that:
I will let things go, push things off, procrastinate and then I lie. I put off the easement agreement. There was no rush. There was no urgency until the end. I lied to my boss . . . . I would always get things done. In the past, if I lied, I would do the project within twenty-four hours. I might be late, but I always got things done.
FF 14, H.C. Rep. at 8, citing BX 22 at 8. Dr. Blumberg also testified that Respondent had told him that he believed he could "bail himself out" of the situation here because "he always did at the eleventh hour in other matters." FF 60, H.C. Rep. at 25-26.
Respondent himself testified that he had trouble telling the truth and that he was "an addict of privilege, . . . not of money but of something that allows me to get out of trouble . . . ." FF 59-61, H.C. Rep. at 25-26. He admitted that he needed "help, not just with cocaine addiction, but . . . with my veracity, with my narcissisms . . . . I think that I can . . . manipulate people . . . and that is what led me to this, . . . that I can pull this out of the hat, . . . . I did it a thousand times." Tr. 256-57.
Analysis A. Stipulated Rule Violations
Respondent admitted in the Joint Stipulations that he violated Rules 1.3(a), the duty to provide zealous and diligent representation within the bounds of law, Rule 1.4(a), the duty to keep a client reasonably informed as to the status of a matter and promptly comply with reasonable requests for information, Rule 1.4(b), the duty to explain a matter to a client so that the client may make informed decisions about the representation, and Rule 8.4(c), dishonesty and misrepresentation. Joint Stipulations at 6. The Hearing Committee concluded that Respondent had also violated Rules 1.3(b)(1) & (2), 1.3(c) and 8.4(b). Rules 1.3(b)(1) & (2) provide that it is misconduct for an attorney to intentionally to fail to seek a client's lawful objectives and intentionally prejudice or damage a client. Rule 1.3(c) makes it misconduct for an attorney to not act with reasonable promptness, and Rule 8.4(b) makes it a violation of the Rules for an attorney to engage in criminal conduct reflecting adversely on the lawyer's honesty, trustworthiness or fitness.
In his brief, Respondent did not directly challenge the Hearing Committee's findings concerning Rules 1.3(b) and 1.3(c), although he maintains, as he did at the hearing, that his conduct was the result of his cocaine addiction. Resp. Brief at 15, 19. That claim is foreclosed by the decision in Marshall, supra. Further, the evidence clearly supports the Hearing Committee's findings with respect to the violations of Rules 1.3(a), 1.3(b)(1), 1.3(c) and Rules 1.4(a) and 1.4(b). It is undeniable that Respondent failed to complete the ERA, to keep the Client informed as to the status of the ERA, to keep the Client abreast of developments so that the Client may make an informed decision about the representation, and to seek the Client's lawful objectives.
Similarly, the violation of Rule 8.4(c) is clear. That rule prohibits a lawyer from "engaging in conduct involving dishonesty, fraud, deceit or misrepresentation." Respondent's falsifying the signatures of the other parties to the transaction, representing that those documents were notarized when they had not been, and advising his client and his partner that the ERA was completed and filed in the land records of the District of Columbia constitute the very type of conduct proscribed by that rule.
B. Rule 1.3(b)(2) - Intentionally Prejudicing or Damaging a Client
The evidence in support of the Hearing Committee's findings with respect to the violation of Rule 1.3(b)(2), is somewhat more tenuous. That rule provides that "a lawyer shall not intentionally . . . prejudice or damage a client during the course of the professional relationship." While intent can be inferred from the surrounding facts, see, e.g., In re Godette, 919 A.2d 1157, 1165-66 (D.C. 2007), there is scant evidence that Respondent intentionally sought to prejudice or damage the Client. He testified that he always sought to advance the Client's interest and there was no evidence to the contrary. However, the Court has held that "[n]eglect ripens into an intentional violation when the lawyer is aware of his neglect of the client matter, or the neglect is so pervasive that the lawyer must be aware of it." In re Lewis, 689 A.2d 561, 564 (D.C. 1997). As the Hearing Committee concluded: Respondent knew that he had neglected to finalize the ERA when he lied to his Client and Mr. Kahn that the ERA had been completed, and, when he later forged the other parties' signatures thereto. Thereafter, Respondent was reminded on a number of occasions that he had failed to pursue the Client's objectives with respect to the ERA, including in the latter part of 2005, when the Client and Mr. Kahn sought assurances from Respondent that the ERA had been filed with the D.C. Recorder of Deeds, and in January 2006, when the Client requested Respondent to prepare and circulate the 45-day Construction Commencement Notice required under the ERA. Notwithstanding these periodic reminders that he had neglected to complete or finalize the ERA, Respondent took no steps to do so . . . .
H.C. Rep. at 36. That conclusion is well supported in the record and we agree with the Hearing Committee that Bar Counsel established a violation of Rule 1.3(b)(2) by clear and convincing evidence.
C. Violation of Rule 8.4(b)
Although Respondent states in his brief that he does not challenge any specific finding of the Hearing Committee, Resp. Brief at 2, he does contend that he did not engage in any criminal activity. Id. at 15; Tr. 259-62. Since criminal conduct is an essential element of a Rule 8.4(b) violation, we interpret that assertion as an objection to the Hearing Committee's conclusion that he violated Rule 8.4(b).
Rule 8.4(b) provides that it "is professional misconduct for a lawyer to . . . (b) commit a criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects . . . ."*fn19 As the Hearing Committee recognized, a respondent does not have to be charged criminally or convicted to violate the rule. H.C. Rep. at 29. It is sufficient if his conduct violated a criminal statute and the crime reflects adversely on his honesty, trustworthiness, or fitness. In re Slattery, 767 A.2d 203, 207 (D.C. 2001); see In re Pierson, 690 A.2d 941 (D.C. 1997); In re Gil, 656 A.2d 303 (D.C. 1995).The Hearing Committee held that Respondent committed forgery by falsely signing the names of the other parties to the ERA, signing the names of fictitious notaries, and presenting it to his Client and others as complete and executed by the other parties. H.C. Rep. at 30. It also found that he falsely impersonated a public officer in violation of D.C. Code § 22-1404 when he signed the names of the fictitious notaries on the ERA. H.C. Rep. at 32. We agree with the Hearing Committee, although for somewhat different reasons, that Bar Counsel established that Respondent violated Rule 8.4(b) in signing the names of the other parties and purporting to have the documents notarized by signing the names of fictitious notaries. However, we conclude that Bar Counsel did not establish that Respondent violated D.C. Code § 22-1404.
The District of Columbia Code defines forgery as the "mak[ing],
draw[ing], or utter[ing] a forged written instrument with intent to
defraud or injure another." D.C. Code § 22-3241(b) (2009 ed.). A
forged written instrument is defined as "any written instrument that
purports to be genuine but which is not because it: (A) has been
falsely made, altered, signed, or endorsed . . . ." Id. at §
3241(a)(1). "Utter" means to issue, authenticate, transfer, publish,
sell, deliver, transmit,
present, display, use, or certify. Id. at § 3241(a)(2).*fn20
There is no question but that Respondent forged an instrument
and caused it to be uttered when he presented the ERA to his client.
H.C. Rep. at 30. However, to establish that Respondent committed
forgery or uttering, Bar Counsel was required also to show that he did
so with fraudulent intent. In re Slaughter, 929 A.2d 433, 444 (D.C.
2004); In re Reback, 487 A.2d 235, 242 (D.C. 1985).
The Court has stated that:
"fraud" is a "generic term which embraces all the multifarious means . . . resorted to by one individual to gain advantage over another by false suggestions or by suppression of the truth." Thus, to prove the defendant's fraudulent design, there must be evidence that the defendant [acted] . . . to deceive another in order to gain some advantage thereby. But the advantage need not be monetary or even material in nature.*fn21
Gary v. United States, 955 A.2d 152, 155 (D.C. 2008) (citing In re Austin, 858 A.2d 969, 976 (D.C.2004) (quoting In re Shorter, 570 A.2d 760, 767 n. 12 (D.C. 1990) (per curiam) (citation omitted)). Bar Counsel argues that Respondent's fraudulent intent was established when he made "it appear that the other parties to the ERA had agreed to its terms . . . " and because the forged "ERA was capable of prejudicing or harming the client." B.C. Brief at 27-28. However, that the document was capable of prejudicing or harming the Client does not establish that Respondent intended to harm the Client. And, as noted, he has claimed throughout this proceeding that he never intended to harm the Client; rather he wanted to advance the Client's interests and would clean up the matter later. See, e.g., Tr. 148-49, 255-56; Resp. Brief at 9-10.
Thus, the fact that Respondent intended to deceive the Client does not appear to be sufficient, standing alone, to support a finding that he violated D.C. Code § 22-3241(b).
The Hearing Committee held that Respondent acted with fraudulent intent because he forged the signatures of the other parties and the purported notaries in order to retain his employment by Holland & Knight. H.C. Rep. at 31-32. Respondent disputes that conclusion, arguing that the firm continued to employ him because he was providing valuable legal services to its clients and that, in fact, Mr. Kahn's testimony demonstrates that the firm would have continued to employ him had he admitted the forgeries. Resp. Brief at 15-16. Respondent's claim strains Mr. Kahn's testimony. Indeed, it is clear that Holland & Knight would have discharged him had he admitted the forgeries: it did so when it learned of the forgeries. On the other hand, there is no evidence to support the Hearing Committee's conclusion that he forged the signatures in order to keep his job. Based on the record, we do not know what the firm would have done had Respondent admitted that he had not completed the ERA and that he needed more time to finalize the document. And, given Mr. Kahn's defense of Respondent even after Respondent admitted the forgeries,*fn22 Respondent's tenure with the firm and the apparent quality of his work, there is a substantial question whether they would have discharged him under those circumstances.
Nonetheless, intent may be inferred from the facts surrounding Respondent's conduct and the Court has made it clear that we are not to ignore our common sense in evaluating the facts of a case. See, e.g., Godette, supra. Respondent forged the signatures of the other parties to the ERA and falsely purported to have had those signatures notarized for the purpose of deceiving his Client. The forged document deceived the Client, as it went forward with the transaction based on it, and the Client would have been harmed by Respondent's actions were it not for the actions of Mr. Kahn and Holland & Knight and the fortuitous delay in the Client securing the necessary permits.
While the evidence may not establish that Respondent forged those signatures for the purpose of retaining his job, it is clear that he forged the signatures to protect his reputation and standing with Mr. Kahn, the Client, and the firm. Since the benefit required to demonstrate fraudulent intent need not be monetary or material, the intent to preserve his reputation or image is sufficient to support the finding that he committed a criminal act proscribed by D.C. Code § 22-3241(b), and thus violated Rule 8.4(b). Further, his conduct clearly "reflects adversely on [Respondent's] . . . honesty, integrity, trustworthiness, [and] fitness as a lawyer in other respects . . . ." That is particularly true given that the Court has advised that it is not our job to determine under Rule 8.4(b) whether a respondent committed a crime, but rather whether "the conduct at issue was a criminal act that merits disciplinary sanction . . . ." Slattery, 767 A.2d at 207. And, falsifying signatures on a document as well as falsely purporting to have had the signatures notarized with the intent to deceive one's client is the type of "criminal conduct that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects . . ." as proscribed by Rule 8.4(b). Accordingly, we conclude that Bar Counsel has established that Respondent violated that rule in signing the names of the other parties to the purported ERA and affixing the names of fictitious notaries.
While we find that Bar Counsel has established a violation of Rule 8.4(b), our recommended disposition is not affected by that conclusion. His violation of the other rules, including his violation of Rule 8.4(c), is sufficient, we believe, to support our recommended sanction.
ii. Violation of D.C. Code § 22-1404
The Hearing Committee concluded that Respondent violated D.C. Code § 22-1404 by signing the names of fictitious notaries to the ERA. H.C. Rep. at 32-33. For the reasons set forth below, we conclude that the Hearing Committee erred in reaching that conclusion.
D.C. Code § 22-1404 provides "[w]hoever falsely represents himself or herself to be a . . . notary public . . . and attempts to perform the duty or exercise the authority pertaining to . . . such office" is guilty of a felony punishable by up to three years in prison." We have been unable to find, and neither party has cited to us, any case construing the portion of this section relating to notary publics or attempts to perform the functions of a notary. The few cases we found involved the impersonation of a police officer, and in each of them, the defendant had impersonated a police officer and attempted to exercise the powers of a law enforcement official. Gary, 955 A.2d 152; Williams v. United States, 404 A.2d 189 (D.C. 1979). There is no similar conduct here: Respondent did not hold himself out as a notary and never purported to exercise the powers of a notary himself. Compare Fentress v. United States, 228 F.2d 646 (D.C. Cir. 1955).
Since D.C. Code § 22-1404 requires that the actor both impersonate a notary and attempt to perform the functions of a notary, we conclude that Bar Counsel did not establish that Respondent violated that section. As shown by the D.C. jury instructions, the government has to establish both that the defendant "falsely represented [him/herself] to be a notary public and . . . made statements or took action in an effort to perform the duty or exercise the authority of a notary public" in order to establish a violation of D.C. Code § 22-1404. Matthew Bender, Criminal Jury Instructions for the District of Columbia, DC Instruction 6.130 (2009).
Respondent never held himself out as a notary.*fn23 Consequently, we find that Bar Counsel has not established a violation of Rule 8.4(b) with respect to his claim under D.C. Code § 22-1404.
As the Court and the Board have noted, the imposition of the appropriate sanction in a disciplinary matter is not an exact science. Rather, the proper sanction depends on the facts and circumstances of each case. See In re Thyden, 877 A.2d 129, 144 (D.C. 2005). In deciding the appropriate sanction, we are enjoined to consider (a) the nature and seriousness of the misconduct, (b) the prejudice, if any, to the client resulting from the misconduct, (c) whether the conduct involved dishonesty or misrepresentation, (d) the presence or absence of violations of other ethical rules, (e) whether the respondent has been disciplined previously, (f) whether the lawyer acknowledges and is genuinely remorseful about his misdeeds, and (g) any other circumstances in mitigation or aggravation. In re Jackson, 650 A.2d 675, 678-79 (D.C. 1994) (per curiam) (appended Board Report). To the extent practicable and feasible, the discipline imposed should be comparable to that imposed in other cases involving similar violations, but with the recognition that the disciplinary system is not intended to be punitive, but to protect the public and the courts, safeguard the integrity of the Bar and deter similar misconduct. In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc); Reback, 513 A.2d at 231.
(a) The Nature of the Misconduct
The Hearing Committee concluded that "Respondent engaged in serious misconduct, including criminal acts and dishonesty directed at his Client." H.C. Rep. at 41. Among the Rule violations were (a) lying to the Client and Mr. Kahn as to the status of the ERA, (b) forging the signatures of the adjacent landowners and other parties, (c) signing the names of fictitious notaries to create the impression that those signatures were notarized, (d) falsely assuring the Client that the other parties had agreed to the terms of the ERA, (e) falsely assuring the Client that the ERA had been filed with the District of Columbia land records, (f) falsely assuring the Client that the construction notice had been sent to the other parties, (g) lying to Bar Counsel when he reported his misconduct and when he cancelled the initial meeting, and (h) lying during the hearing. The Hearing Committee found that this conduct breached Respondent's fiduciary obligations to his client to represent them diligently, to deal with his client honestly, not to prejudice its interests, and to keep the Client informed as to the status of the matter. We agree. Respondent's conduct constituted a serious breach of his responsibilities as a lawyer and, notwithstanding his assertions that they were caused by his addiction, stress, lack of sleep, and other problems, see Resp. Brief at 6-8, they cannot be ignored or go unsanctioned. These Rule violations require a prolonged suspension, even if they do not rise to the level of disbarrment.
(b) Prejudice to the Client
Respondent argued in his Findings of Fact and Conclusions of Law that the Client was not materially prejudiced because of his conduct. Respondent Theodore S. Silva, Jr.'s Proposed Findings of Fact, Conclusions of Law and Recommendation as to Sanction at 4, ¶ 5 (filed Feb. 1, 2008).*fn24 The Hearing Committee rejected that argument, finding that the Client avoided serious financial harm only because of the actions taken by Mr. Kahn and Holland & Knight to cure the problems he created, and the fortuitous turn of events that the Client had not secured all the permits it required. See H.C. Rep. at 43. We agree. Holland & Knight paid approximately $150,000 to the other parties and their counsel and absorbed the cost of approximately 50 hours of Mr. Kahn's time. Tr. 62-66.
(c) Dishonesty or Misrepresentation
There is no question that Respondent acted dishonestly. His actions entailed a pattern of lies and misrepresentations to the Client and Mr. Kahn, a partner who had put a great deal of trust in him. That pattern was followed in his dealings with Bar Counsel, where he lied when he stated that he had stopped using cocaine; had enrolled in a treatment program in 2006; submitted to random drug testing; and that his nephew had died. He lied when he filed his Kersey plea in mitigation when he stated that he had been attending AA and NA meetings since January 2006, and he lied to the Hearing Committee when he testified that he had ceased using cocaine in May 2006. He lied to the Kolmac Clinic to avoid after-care when he told them his father had died. There is no excuse for this continuing breach of a lawyer's fundamental obligation to be honest and truthful.*fn25 In re Lopes, 770 A.2d 561 (D.C. 2001); In re Goffe, 641 A.2d 458 (D.C. 1994) (per curiam); In re Steele, 868 A.2d 146 (D.C. 2005). His conduct raises serious questions as to Respondent's basic qualifications to serve as a member of the District of Columbia Bar.
(d) Other Ethical Rule Violations
Respondent has been charged and found guilty of violating eight rules in connection with this matter. While not formally charged, it appears that he also violated Rule 3.3 by lying in his Kersey plea and during the hearing, and Rule 8.1 in lying to Bar Counsel when he self-reported and when he sought to postpone a meeting with Bar Counsel. The number of rule violations found, albeit arising essentially in a single matter, require a substantial sanction.
(e) Prior Discipline
Respondent has not been subject to any prior discipline. However, he failed to report the results of the Virginia disciplinary proceeding. See, e.g., In re Sawyer, 953 A.2d 1019 (D.C. 2008) (per curiam); In re Gardner, 650 A.2d 693 (D.C. 1994). And, as noted below, see infra at 24-25, that disciplinary action forecloses any mitigation for the absence of any prior disciplinary action.
(f) Respondent's Remorsefulness
The Hearing Committee concluded that Respondent "did not express any genuine remorse for his misconduct." H.C. Rep. at 50. It noted that, while he admitted that his conduct was wrong, he did not testify that he was sorry, had not apologized to the Client, and, in fact, contended that the Client benefitted from his actions. The Hearing Committee also found that Respondent had not expressed any remorse for the harm he caused the firm. Id.
Respondent disputes these conclusions in his brief, Resp. Brief at 26-28, and during oral argument. However, his expressions of remorse are qualified. For example, while Respondent purports to acknowledge that his conduct was harmful, that acknowledgement is tempered by efforts to minimize the harm. Thus, he states that he "understands the seriousness of his misconduct and that the Client might have suffered construction delay costs if Mr. Kahn had not risen to the occasion," id. at 16-17 (emphasis added), and asserts that he avoided causing the Client serious harm by not recording the ERA with the District of Columbia land records. Id. at 17. Although he "acknowledges that Holland & Knight incurred losses as a result" of his conduct, he notes that the firm "also received millions of dollars in fees from the Client" and continues to represent the Client. Id.
In short, Respondent's acceptance of the seriousness of his misconduct rings hollow and does not show the remorse that might warrant a lessened sanction. He has also not taken any steps to demonstrate his purported remorse, such as attempting to repay Holland & Knight a portion of the costs they incurred as a result of his misconduct.*fn26 In all events, the determination whether Respondent was remorseful is in the nature of a credibility finding, and we are to defer to the credibility findings of the hearing committees, unless clearly erroneous. In re Ukwu, 926 A.2d 1106, 1115 (D.C. 2007). The finding here is not clearly erroneous. (g) Mitigating or Aggravating Circumstances Respondent maintained that his clean record was a mitigating factor. The Hearing Committee rejected that argument, finding that he had not revealed the Virginia disciplinary action that is the subject of the reciprocal discipline matter before the Board. Indeed, the Hearing Committee found that his failure to disclose the Virginia disciplinary proceeding coupled with his assertion that he had no prior discipline were aggravating factors. H.C. Rep. at 45-46. In his brief, Respondent contends that he was advised by his counsel at the time that he did not have to report the conviction to the Virginia Bar because the sentence imposed was "probation before conviction." Resp. Brief at 23. He also maintains that, because he was effectively sequestered at the Second Genesis center when the Virginia Bar matter arose, he did not learn of the Agreed Disposition, entered on January 31, 2008, until he was discharged from the Second Genesis program on February 21, 2008. Id. at 21-23. We have trouble believing Respondent's claims concerning his lack of knowledge since we find it unlikely that counsel would enter into an Agreed Disposition without consulting with Respondent. However, we will give Respondent the benefit of the doubt and not fault him for seeking mitigation of any sanction based on his lack of prior discipline. The same counsel represented Respondent before the Virginia disciplinary authorities and filed Respondent's Proposed Findings of Fact and Conclusions of Law seeking the mitigation. Counsel obviously knew of the Virginia action. We do not know whether Counsel or Respondent made the error in seeking the mitigation. While we do not concur in the Hearing Committee's conclusion that his effort to seek mitigation for lack of prior discipline was an aggravating factor, we also believe that mitigation for the absence of prior discipline is inappropriate.
The Hearing Committee also rejected Respondent's Kersey mitigation claim. It held that his addiction to cocaine was foreclosed by the Court's decision in Marshall, supra, and "because he failed to show by a preponderance of the evidence that his use of cocaine caused him to engage in the misconduct." H.C. Rep. at 44. It concluded that any addiction to alcohol did not entitle him to Kersey mitigation, finding that his "use of cocaine and alcohol did not impair his ability to recognize or appreciate the wrongfulness of his conduct or conform his conduct to the ethical rules." Id. at 44-45. And, in all events, it found that he had failed to meet the third prong of the Kersey test because he had not shown that he had been substantial rehabilitated. Id. at 45. Finally, it rejected arguments that his lack of prior discipline and recognition of some of his misconduct did not warrant any mitigation since those factors were "either unfounded or significantly outweighed by the aggravating evidence." Id. at 45.
These conclusions are fully supported by the record. Respondent has
not begun to make a prima facie case under Kersey.*fn27
His reliance on his cocaine addiction is foreclosed by
Marshall, supra, even if he had shown that his actions were caused by
his addiction or that he had been substantially rehabilitated.
However, he made neither showing. Indeed, Respondent's own testimony
indicated that his dishonesty was endemic and unaffected by his
cocaine addiction. FF 61, H.C. Rep. at 26; Tr. 256-57. Further, the
only evidence of rehabilitation came after the hearing in this case
when he entered the Second Genesis program, and that came too late.
See Marshall, 762 A.2d at 539. Finally, Respondent did not meet his
burden of proof with respect to his claim that he was addicted to
alcohol or was suffering from ADD, ADHD and depression. Even assuming
arguendo that Respondent had borne that burden, he did not establish
that any of those problems caused his misconduct.
Recommendation as to Sanction
As the Hearing Committee concluded, the record in this case demonstrates a pattern of deceit and intentional falsehood and misrepresentation that warrants a severe sanction. It found, that "disbarrment is appropriate here because of the aggravating factors, including Respondent's dishonesty and other Rule violations that were not isolated, and the fact that Respondent acted intentionally and for his own personal benefit, the misconduct was practice related, and the misconduct was aggravated by false testimony at the hearing and prior undisclosed Virginia disciplinary action." H.C. Rep. at 52.
While we fully agree with the Hearing Committee's conclusions that Respondent's conduct was extremely serious and requires a substantial sanction, we do not believe that precedent supports disbarrment. The Hearing Committee did not cite any case involving comparable rule violations that resulted in disbarrment, nor has Bar Counsel. Both instead analogize this case to Slaughter, supra, and rely on dicta in the Court's decision to support disbarrment. For example, the Hearing Committee concluded that Respondent's conduct was more serious than the conduct in Slaughter because Respondent "engaged in further dishonesty by making knowing false statements, including while under oath at the hearing." H.C. Rep. at 52. Citing to the Court's statement that the sanction in Slaughter was on the lenient side for his forgery and advising his law firm that he had been retained by the State of Arkansas and other misrepresentations, which cost the firm $1.5 million, the Hearing Committee concluded that disbarrment here was appropriate. Id. at 50-51. The Hearing Committee also found that Respondent's conduct was more reprehensible than that of the respondents in In re Addams, 579 A.2d 190 (D.C. 1990) (en banc) and In re Robinson, 583 A.2d 691 (D.C. 1990) (per curiam), in which the respondents were disbarred for misappropriation of client funds. H.C. Rep. at 52. Bar Counsel relies on the Court's statement that Slaughter would have been disbarred had he been found guilty of forgery, B.C. Brief at 48, which it alleges is the case here. Bar Counsel also cites to Goffe, supra, and In re Pelkey, 962 A.2d 268 (D.C. 2008) to support disbarrment. B.C. Brief at 48.
Although we find Respondent's misconduct was inconsistent with his
obligations as a lawyer, we do not believe that Slaughter or any of
the other cases cited by the Hearing Committee or Bar Counsel support
disbarrment. Mr. Slaughter was not disbarred and he was found to have
engaged in forgery. And, while Respondent lied under oath,*fn28
that misconduct does not generally result in disbarrment even
when accompanied by dishonesty. See, e.g., In re
Cleaver-Bascombe, 892 A.2d 396 (D.C. 2006), on remand, Supplemental
Report and Recommendation of the Board on Professional Responsibility,
Bar Docket. No. 183-02 (BPR July 21, 2006) (Court review pending)
(two-year suspension with fitness for violating, inter alia, Rules 3.3
and 8.4 by filing a false CJA voucher and committing perjury at the
Rather, cases involving falsification of documents, including false notarizations involving a single client-matter have resulted in suspensions, from a month to several years. See, e.g. In re Uchendu, 812 A.2d 933 (D.C. 2002) (30-day suspension for violating Rules 3.3(a) and 8.4(c) by knowingly submitting to the probate court verified documents where respondent had signed clients' names and falsely notarized them); In re Mendoza, 885 A.2d 317 (D.C. 2005) (per curiam) (90-day suspension for violating Rule 8.4(c) by knowingly providing false criminal justice vouchers to induce payment of funds not earned); In re Schoeneman, 891 A.2d 279 (D.C. 2006) (per curiam) (four-month suspension for violating, inter alia, Rule 8.4(c) for making false statements to clients regarding the status of their cases and his suspension from practice); In re Wright, 885 A.2d 315 (D.C. 2005) (per curiam) (one-year suspension for violating, inter alia, Rules 4.1(a), 8.1(a), and 8.4(c) for not paying medical providers by falsely representing in letters that the cases hadn't settled and that he had reduced his own fees); In re Parshall, 878 A.2d 1253 (D.C. 2005) (per curiam) (18-month suspension for violating Rule 3.3(a) by intentionally filing a false status report with the Court and fabricating false supporting documents); Steele, 868 A.2d 146 (three-year suspension with fitness for violations of, inter alia, Rules 8.4(c) & (d) by lying to clients as to the state of the case and fabricating a false subpoena).
In contrast, the cases in which attorneys have been disbarred have involved prolonged misconduct involving dishonesty, misappropriation of client funds or actions that abused the attorney-client relationship. For example, in In re Rogers, 902 A.2d 103 (D.C. 2006) (per curiam), the respondent was disbarred when he took advantage of his position as an attorney and personal friend of an elderly client to convert approximately $260,000 in cash and assets for his personal use. In In re Anya, 871 A.2d 1181 (D.C. 2005) (per curiam), the respondent was disbarred where there were 11 separate ethical complaints involving dishonest conduct, making false statements to a court, and falsifying court records. Similarly, in Goffe, supra, the respondent was disbarred for a pattern of dishonesty and providing false evidence, forging signatures, and falsely notarizing signatures. In re Foster, 699 A.2d 1110 (D.C. 1997) (per curiam), involved 23 violations of numerous rules, and "appalling" and "deplorable" conduct in three distinct matters, including lying to his clients and the court and failing to participate in the disciplinary proceedings against him. Finally, Pelkey, supra, involved the theft of a partner's interest in a business and other serious breaches of his obligations as a lawyer.*fn29
Respondent's conduct here, while falling far below the standards acceptable for members of the Bar, does not rise to the level of those who were disbarred. His misconduct, although not isolated, related to a single matter. His dishonesty in dealing with Bar Counsel and his false testimony at the hearing clearly aggravate the misconduct, but it does not rise to the level of dishonesty in Goffe, supra, Anya, supra, or Pelkey, supra. Rather, his conduct with respect to his client comes close to the conduct involved in Schoeneman, supra, and Uchendu, supra, where relatively short suspensions were involved. His conduct in purporting to notarize the signatures on the purported ERA is comparable to the conduct involved in Ukwu, supra, and Parshall, supra, which involved falsifying documents, and his false testimony is similar to the conduct involved in Cleaver-Bascombe, supra, where the respondent lied to the hearing committee.
In many respects, this matter is analogous to In re Guberman, 978 A.2d 200 (D.C. 2009), although Respondent's misconduct was more serious than the conduct there. In Guberman, the respondent had "falsely represented to . . . representatives of the firm that he had filed an appeal in [the client's] case" and "falsified filing stamps on papers, falsely certifying that the papers had been filed in court." Id. at 204 (citing Attorney Grievance Comm'n of Md. v. Guberman, 896 A.2d 337, 339-40 (2006)). The Maryland courts disbarred Mr. Guberman, but the Court of Appeals held, based on a lengthy review of sanctions imposed in the District of Columbia for intentional dishonesty, that reciprocal discipline was not warranted because the sanction for intentional dishonesty in the District of Columbia is a suspension of between 30 days to three years. Id. at 208-09. Consequently, it imposed an 18-month suspension, which it called midrange. Id. at 210. Respondent's conduct here involves misconduct not present in Guberman, including Respondent having deceived his client, and a lack of the remorse which Mr. Guberman demonstrated. Thus,Respondent's misconduct warrants a longer suspension. We recommend, based on the record of extensive dishonesty and falsity, a three-year suspension, the outer range of suspensions for violations of the Rules involved here.
The Fitness Requirement
In addition to establishing that Respondent has engaged in serious misconduct which warrants a severe sanction, the record also raises serious questions as to Respondent's fitness to practice law. Throughout his brief before the Board, Respondent maintains that his misconduct was the result of his cocaine addiction. That addiction has been ongoing, with only a short break while on probation from a cocaine possession charge and during most of this proceeding, since he was in college. It continued after his misconduct resulted in his discharge from Holland & Knight until he ran out of money. He reverted to its use almost immediately, albeit in a limited manner, after he returned to the Washington area after spending time with his brother on Cape Cod. He effectively admitted that cocaine assumed a dominant role in his life, Tr. 146-52, and, while the evidence may not suffice to demonstrate that it caused his conduct here, there is substantial evidence in this record that his cocaine addiction played a role in his conduct and is a matter of serious concern as to his fitness.
That concern is aggravated by his admitted history of having trouble telling the truth, which was demonstrated throughout this proceeding. Given those concerns, we recommend that Respondent be required to demonstrate his fitness before he can resume the practice of law. As the Court noted in Cater, 887 A.2d 1, the decision to suspend an attorney and whether to impose a fitness requirement turns on different considerations. "[T]he decision to suspend an attorney turns largely on the determination of historical facts . . . [while] a fitness requirement turns on a partly subjective, predictive evaluation of the attorney's character and ability." Id. at 22. A fitness requirement is designed to assure that an attorney "will act ethically and competently in the future, after the period of suspension has run. Primarily, our 'concern is that the [attorney's] resumption of the practice of law will not be detrimental to the integrity and standing of the Bar . . . .'" Id. (citations omitted). Thus, in order to impose a fitness requirement, the record "must contain clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law." Id. at 24.
The decision whether to recommend fitness is to be informed by the following five factors set forth in In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985):
(a) the nature and circumstances of the misconduct for which the attorney was disciplined;
(b) whether the attorney recognizes the seriousness of the misconduct;
(c) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones;
(d) the attorney's present character; and
(e) the attorney's present qualifications and competence to practice law.
There is no question that the first factor weighs heavily in favor of imposing a fitness requirement. Respondent lied to the Client, his partner, the Kolmac Clinic, Bar Counsel and the Hearing Committee. His dishonesty was extensive and pervasive, adversely affecting the transaction he was employed to advance and jeopardizing the Client's interests. It is only through the extraordinary efforts of Holland & Knight and a delay in his client's securing the necessary permits that substantial harm did not befall the Client. His dishonesty continued throughout the disciplinary process, where he either lied or dissembled, acknowledging the truth only when forced to face it.
We also have grave doubts that Respondent fully accepts the seriousness of his misconduct. He maintains in his brief and at oral argument that he is remorseful and that he recognizes that his conduct was unacceptable, but, as noted above, his expressions of remorse leave much to be desired and, given his history of not telling the truth, one has to accept his statements with a certain degree of skepticism. The third criterion -- steps taken to remedy the past wrong -- is technically not applicable here since Respondent has not yet been sanctioned. However, Respondent's conduct after his malfeasance was discovered does not evidence a meaningful recognition that he needed to mend his ways. He did not cease using cocaine until he ran out of money and did not report the misconduct to Bar Counsel until after Holland & Knight reported him, even though the firm gave him the option of coming forward first. When he finally reported, his report was rife with statements that he knew were untruthful, including postponing a meeting with Bar Counsel that he had requested based on the lie that his nephew was killed in an automobile accident. The only steps he took to prevent future misconduct came after the hearing when he entered the Second Genesis program.*fn30
The fourth and fifth criteria favor imposition of a fitness requirement. While Respondent's drug reports indicate that he appears to have stayed away from cocaine since December 2007, his long history of drug use raises serious questions as to his ability to stay away from drug use once he is not being closely supervised. He continued to use the drug after his sentence for possession in Virginia and only stopped when his probation officer threatened to turn him in. He resumed using cocaine almost immediately after his sentence was vacated in Virginia and used it extensively during the period in which his misconduct occurred. He continued to use it after he was fired by Holland & Knight, squandering the bulk of his bonus and severance package on cocaine. And, he resumed using it, albeit only three times, when he returned to the District of Columbia from Massachusetts, where he had gone to live with his brother, a lobster fisherman. We are also concerned about his efforts to avoid having his wages garnished to pay for child support. That conduct raises serious questions as to his integrity.*fn31
In sum, the record in this case raises serious questions about Respondent's ability to remain free of cocaine and his ability to tell the truth. Indeed, Respondent testified that he has trouble telling the truth and has a pattern of dishonesty and dissembling. From the record here, it appears that the tendency to lie or dissemble is corrected only when there is no other way out. That conduct raises fundamental questions as to his fitness to practice law. Consequently, we strongly recommend that Respondent be required to show his fitness to practice before being allowed to practice once his suspension ends.
II. RECIPROCAL DISCIPLINE MATTER (Bar Docket No. 062-08)
Respondent was arrested in 2002 in Arlington County, Virginia, and pled guilty to possession of cocaine. His sentencing was suspended and Respondent was placed on probation for two years subject to the condition that (a) he enter and complete a drug counseling/treatment program as directed by his probation officer and (b) complete 100 hours of community service. His driver's license was suspended for six months.*fn32 Upon completion of his probation, his guilty plea was vacated and the indictment was dismissed.*fn33
Respondent did not report his cocaine conviction to either the
District of Columbia Court of Appeals or the Board,*fn34
nor did he report it to the Virginia State Bar, where he was
also admitted to practice. In 2007, the Virginia Board learned of the
conviction and, on December 27, 2007, issued an order directing
Respondent to show cause and a notice of a hearing to be held in
January 2008 relating to his conviction. Subsequently, Respondent and
Virginia Bar Counsel entered into a Agreed Disposition of a Public
Reprimand With Terms, which was accepted by the Virginia Board on
January 31, 2008, after the original matter in this consolidated
proceeding had commenced. The Virginia Board issued an Order of Public Reprimand
With Terms which required, inter alia, that Respondent (a) comply with
our December 4 and 10, 2007 Orders, and
(b) authorize D.C. Bar Counsel to notify the Virginia Bar Counsel of
any finding of noncompliance with those Orders. The Order also
provided that the terms of discipline remain in effect until January
25, 2010 and, if Respondent failed to comply with the two other terms,
he would receive a one-year suspension.*fn35
Bar Counsel learned of Respondent's conviction on or about November 30, 2007, when Bar Counsel received the report from his forensic psychiatrist, who interviewed Respondent in connection with the original matter. See Statement of Bar Counsel in Bar Docket No. 062-08 at 2 (filed Apr. 3, 2008) ("April 3rd Statement").*fn36 Bar Counsel received a copy of the Virginia Board's public reprimand on February 7, 2008, id. at 4, and notified the Court of Appeals of the Virginia disciplinary action on February 11, 2008. See Letter dated Feb. 11, 2008 from Bar Counsel to Garland Pinkston, Jr., Esq., Clerk of the District of Columbia Court of Appeals.
On March 4, 2008, the Court referred the matter to the Board for a determination whether identical, greater or lesser discipline should be imposed or whether the Board elects to proceed de novo pursuant to D.C. Bar R. XI, §11. Order, In re Silva, No. 08-BG-82 (D.C. Mar. 4, 2008). The case was consolidated with the original matter at the unopposed request of Bar Counsel. Order, In re Silva, Bar Docket Nos. 077-06 & 062-08 (BPR Apr. 6, 2009).
Respondent has not addressed the reciprocal discipline aspects of this proceeding other than to contest the Hearing Committee's conclusion that his failure to report the violation was an aggravating factor in the original case, Resp. Brief. at 21-23, and to urge the Board to consolidate the two cases. See Statement of Respondent in Bar Docket No. 062-08 at 1-2 (filed Apr. 17, 2008). Bar Counsel has also not addressed the reciprocal matter except in its statement urging the two cases be consolidated. April 3rd Statement at 1. Virginia imposed a public reprimand with terms. Under D.C. Bar R. XI, § 11 in place at the time the reciprocal matter was raised and when Bar Counsel urged that the reciprocal and original cases be consolidated, the Board was required to recommend identical discipline unless one or more of the following exceptions existed: (1) the procedure in the sister jurisdiction violated the attorney's due process rights, (2) there was such an infirmity of proof establishing the misconduct that the Court could not accept as final the conclusion on the subject, (3) the imposition of the same discipline would result in a grave injustice, (4) the misconduct warrants substantially different discipline in the District of Columbia or (5) the misconduct in the sister jurisdiction does not constitute misconduct here. None of these exceptions to the presumption of identical discipline applies here.
Under D.C. Bar R. XI, § 11(c), the Court will impose identical reciprocal discipline unless the respondent can establish an exception. Since Respondent has not objected to the imposition of reciprocal discipline, we would, prior to the recent amendments to D.C. Bar R. XI, have recommended reciprocal discipline here. However, recent amendments to D.C. Bar R. XI, § 11(c) provide for the publication "by appropriate means" where the disciplinary action by a sister jurisdiction consists of "public censure or reprimand that do not include suspension or probation." See Order, No. M-230-07 (D.C. Apr. 3, 2008). In an Order issued on September 4, 2008, the Court held that where Bar Counsel learns that a sister jurisdiction censured, reprimanded or admonished a member of the D.C. Bar, Bar Counsel should publish notice of that action "without having to refer individual matters to the Court for an order of publication." Order, No. M-234-08 (D.C. Sept. 4, 2008).
The revision to D.C. Bar R. XI, § 11(c) was effective on August 1, 2008, and the Court ordered the Board to proscribe by internal rule the manner in which Rule XI would be applied to cases that straddle the effective date of August 1, 2008. Order, No. M-230-07. On July 21, 2008, the Board issued an Order providing that the revised rule would only apply to reciprocal discipline cases filed by Bar Counsel with the Court on or after August 1, 2008. Order, In re Amendments to D.C. Bar Rule XI (BPR July 21, 2008) (the "Transition Order"). Bar Counsel notified the Court of Respondent's Virginia discipline on February 11, 2008, thus, pursuant to the Board's Transition Order, the revised D.C. Bar R. XI, § 11(c) is not applicable to this matter. However, the Court in both Filomeno, No. 07-BG-863 and Portner, 08-BG-28, applied the new rule to reciprocal discipline cases that were pending on August 1, 2008. And, in In re Fitzgerald, No. 07-BG-1366 (D.C. Oct. 22, 2009), while the Court applied the prior rule to a pending reciprocal case, it noted that ordinarily changes in law apply to pending cases and that that "principle permits us to follow the amended rule in this case, but that it would apply the prior rule in Fitzgerald, "because we . . . perceive no unfairness in applying the previous rules here . . . ." Id. at 4. Given the actions and the expressed views of the Court on the application of the revised D.C. Bar R. XI, § 11(c) to cases such as this one, we recommend that the Court apply the new rule and order Bar Counsel to publish the Virginia disciplinary action on the D.C. Bar website.*fn37
For the reasons set forth above, we recommend that the Court suspend Respondent for a period of three years effective for purposes of reinstatement from the date he files his affidavit required under D.C. Bar R. XI, § 14(g), require that he demonstrate his fitness as a condition of reinstatement showing that he has broken his cocaine addiction and not used cocaine during the period of his suspension, and direct Bar Counsel to publish the discipline imposed by the Virginia Board in accordance with D.C. Bar R. XI, § 11(c).
BOARD ON PROFESSIONAL RESPONSIBILITY
Theodore D. Frank
All members of the Board concur in this Report and Recommendation except Ms. Cintron, who did not participate.