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In the Matter of: Theodore S. Silva

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)

Background

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 in the 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 ...


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