On Report and Recommendation of the Board on Professional Responsibility
Before REID, Associate Judge, and NEWMAN and WAGNER, Senior Judges. Dissenting opinion by Senior Judge WAGNER at p. 18.
The Board on Professional Responsibility (Board) has filed with this court a Supplemental Report and Recommendation that respondent, Karen P. Cleaver-Bascombe, be suspended from the practice of law for two (2) years with a requirement that she prove fitness before reinstatement for conduct violating four disciplinary rules, namely: Rule 1.5 (a) (charging an unreasonable fee); Rule 3.3 (a)(1) (making a false statement of material fact to a tribunal); Rule 8.4 (c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 8.4 (d) (engaging in conduct that seriously interferes with the administration of justice). Cleaver-Bascombe excepts to the Board's supplemental report and recommendation, contending that the record does not support the Board's findings or the recommended sanction. Alternatively, Cleaver-Bascombe requests that the court impose as a sanction a thirty-day suspension and suspend its execution for a period of six months with the requirement that she have a practice monitor and complete a Continuing Legal Education (CLE) course on record-keeping. We adopt the Board's findings in its supplemental report but reject its recommended sanction. We order that Karen P. CleaverBascombe be disbarred.
I. Factual and Procedural Background
This case returns to the court following remand proceedings pursuant to this court's opinion and remand order in In re Karen P. Cleaver-Bascombe, 892 A.2d 396 (D.C. 2006) (Cleaver-Bascombe I).*fn1 The case stems from findings that respondent, an attorney appointed to represent an indigent criminal defendant under the Criminal Justice Act (CJA), D.C. Code §§ 11-2601 et seq. (2001) in an extradition case, submitted a fraudulent voucher to the court seeking compensation for services that she knew she had not rendered. In Cleaver-Bascombe I, we considered the Board's initial report in which the Board adopted essentially the Hearing Committee's findings, concluded that respondent's conduct violated four disciplinary rules (Rules 1.5 (a), 3.3 (a)(1) and 8.4 (c), and 8.4 (d)) and recommended that respondent be suspended from the practice of law for ninety days, with reinstatement conditioned upon her successful completion of a Continuing Legal Education (CLE) course on time and record- keeping, while Bar Counsel urged a one-year suspension with reinstatement conditioned upon proof of fitness to practice law. In making its original recommendation, the Board had declined to find that respondent's misconduct was aggravated by her testimony at the disciplinary hearing in which she supported the validity of the claimed services on the voucher. The Board "agree[d] with Respondent that the [Hearing] Committee's findings do not support a conclusion that [Respondent] presented false evidence or testimony." Id. at 399. In Cleaver-Bascombe I, the court identified a tension between the Board's findings in its initial report that required resolution by the Board before determining the appropriate sanction for the proven violations.*fn2 Id. at 399. Specifically, the court stated that "[b]ecause Respondent swore to essentially the same propositions in her voucher and in her testimony, . . . the Board's finding that the voucher was intentionally false and patently fraudulent is difficult, if not impossible, to reconcile with its later treatment of Respondent's testimony as not having been proved to be deliberately false." Id. Therefore, the court remanded the case to the Board for revised findings and a new recommendation consistent with the court's opinion. Id. at 413.*fn3
The Board explained in its supplemental report that it did not return the matter to the Hearing Committee on remand because the court did not direct it to do so, and neither Bar Counsel nor respondent requested it in their briefs on remand. Moreover, the Board expressed the view that even if the case were remanded to the Hearing Committee, it could not reasonably expect it to reconstruct accurately its credibility impressions after such an extended lapse of time. The Board stated that "[i]n these circumstances, the only course reasonably available to us is to review the Committee's findings anew with a view to identifying the conduct that we are confident at this juncture can be said to have been proved by clear and convincing evidence."*fn4 Following briefing by the parties on remand and upon further review, the Board issued its supplemental report in which it adhered to its prior finding that respondent submitted for payment a fraudulent voucher seeking compensation for services she knew that she had not rendered and made the additional finding that respondent exacerbated her misconduct in sworn testimony when she "defended her voucher as written and insisted that it fairly reflected the services she rendered." The Board concluded as a matter of law that respondent perjured herself in her testimony before the Hearing Committee. Therefore, the Board revised its recommended sanction to a suspension of two years with the requirement that respondent prove fitness before reinstatement.*fn5
When considering a Report and Recommendation from the Board on Professional Responsibility, this court must "accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9 (h) (2006); accord, In re Elgin, 918 A.2d 362, 373 (D.C. 2007); In re Berryman, 764 A.2d 760, 766 (D.C. 2000). Similarly, "the Board is obliged to accept the hearing committee's factual findings if those findings are supported by substantial evidence in the record, viewed as a whole." Elgin, supra, 918 A.2d at 373 (quoting Berryman, supra, 764 A.2d at 766). "Generally speaking, if the Board's recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed." In re Hallmark, 831 A.2d 366, 371 (D.C. 2003) (other citations and quotations omitted).
As we said in In re Goffe:
Ultimately, however, the system of attorney discipline, including the imposition of sanctions, is the responsibility and duty of this court. In re Hutchinson, 534 A.2d [919,] 924 [(D.C. 1987)]. "When the court disagrees with the Board as to the seriousness of the offense or the demands of consistency, however, the Board's recommendations are accordingly granted less weight." In re Kennedy, 542 A.2d 1225, 1228 (D.C. 1988) (citing In re Reback, 513 A.2d 226, 230-31 (D.C. 1986) (en banc)). More specifically, decisions of this court can serve as overall guidelines to assist in defining the permissible range of sanctions.
In re Goffe, 641 A.2d 458, 464 (D.C. 1994).
We iterate briefly the applicable principles. To determine what discipline is appropriate under the circumstances, we review the respondent's violations in light of all the relevant factors. Reback, 513 A.2d at 231. These factors include (1) "the nature of the violation, [(2)] the mitigating and aggravating circumstances, [(3)] the need to protect the public, the courts, and the legal profession," Hutchinson, 534 A.2d at 924, and (4) the moral fitness of the attorney. Id. (citing In re Smith, 403 A.2d 296, 303 (D.C. 1979)). The purpose of imposing discipline is to serve the public and professional interests identified and to deter future and similar conduct rather than to punish the attorney. Kennedy, 542 A.2d at 1231; Hutchinson, 534 A.2d at 924.
And as we said in Cleaver-Bascombe I, "where 'this court has had little occasion to pass upon conduct such as was involved in that case and here, and therefore our role in reviewing the Board's recommendation may be more assertive than in more familiar types of misconduct.'" Cleaver-Bascombe, supra, 892 A.2d at 402 (quoting In re Schneider, 553 A.2d 206, 211 (D.C. 1989) (brackets and ellipses omitted in original)).
In the final analysis, we are always mindful that the solemn obligation and responsibility for determining and imposing disciplinary sanctions on a member of our bar rest upon this court. In re Temple, 629 A.2d 1203, 1207 (D.C. 1993). See also Cleaver-Bascombe I, supra, 892 A.2d at 402; Elgin, supra, 918 A.2d at 376. With these standards in mind, we consider the Board's findings and recommendation and the arguments of the parties with respect thereto.
B. The Board's Findings on Remand
Respondent argues that the record does not support the Board's conclusion that she submitted a patently fraudulent voucher. She contends that the Board's original finding that the voucher was prepared without much deliberation and that it was reckless, careless, and not cunning, negates any conclusion that respondent acted with a fraudulent intent. She argues that eleven of the twelve entries on the voucher are supported by the evidence and that one uncorroborated entry, i.e., a jail visit, would not render the entire voucher patently fraudulent. However, in Cleaver-Bascombe I, this court rejected respondent's argument that the Hearing Committee's findings lacked adequate support in the record. Cleaver-Bascombe I, supra, 892 A.2d at 402. The Board found that all of the Committee's factual determinations are supported by substantial evidence and adopted them "in toto," and this court did the same. Id. To the extent that respondent seeks to revisit the challenges previously raised and disposed of, we are foreclosed from doing so by the law-of-the-case doctrine. Lenkin Co. Mgmt. v. District of Columbia Rental Hous. Comm'n, 677 A.2d 46, 48 (D.C. 1996) (citing Kritsidimas v. Sheskin, 411 A.2d 370, 371 (D.C. 1980)); see also ...