The opinion of the court was delivered by: Oberly, Associate Judge
On Report and Recommendation of the Board on Professional Responsibility (BDN 130-05, 288-05 & 357-05).
Before BLACKBURNE-RIGSBY, THOMPSON, and OBERLY, Associate Judges.
This disciplinary case is before us on exceptions by respondent Anita C. Kanu, a member of the District of Columbia Bar, and by Bar Counsel to the Report and Recommendation of the Board on Professional Responsibility. The Board recommended that we find that Kanu violated District of Columbia Rules of Professional Conduct 1.16 (d) (failure to refund unearned fees), 7.1 (false or misleading statements about her services) and 8.4 (c) (conduct involving fraud, dishonesty, deceit or misrepresentation), arising out of Kanu's failure to refund fees she had promised to return to two clients if she did not succeed in obtaining for them the immigration status for which they sought her services. We adopt the Board's report in large part, rejecting Kanu's arguments that she had insufficient notice of the substance of Bar Counsel's allegations against her and that the Board's Hearing Committee's findings were based on internally inconsistent findings of fact or were not supported by substantial evidence in the record. But we overturn the Board's dismissal of Kanu's violation of Rule 8.4 (d) (serious interference with the administration of justice) - a dismissal that was based on Bar Counsel's failure to obtain from the Board a motion to compel before charging a violation of this Rule. Finally, we adopt the sanction that the Board recommended to this court and order that Kanu be disbarred and, further, that as a condition of reinstatement she make restitution to her clients in the amounts found due by the Board.
I. Facts and Procedural History
Attorney Anita Kanu was admitted to practice law in the District of Columbia in 1995, after graduating from law school in 1992. Since 1995, Kanu has lived and practiced law in California, although she has spent much of that time either out of the country or living in Arizona while tending to personal matters. Although she maintained a law office in California, respondent is not a member of the California Bar. Her law practice focused primarily on immigration law and, in particular, on processing visa applications for religious workers. At some point during her practice, an organization named Chinese Christian Services ("CCS") began to make referrals to Kanu, asking her to obtain immigration benefits for the group's religious workers.
In 2003, according to Kanu, CCS told Kanu that because of her success in securing immigration benefits for its workers in the past, CCS would like to "use her more exclusively as a referral source. [CCS], however, strongly suggested to her that she include a refund clause in the retainer letter [she] offered clients that [CCS] referred to her." After some discussion, Kanu agreed and added the following language to at least some of her retainer agreements: "Refund Clause: We also represented to that [sic] if the lawyer accepts your case, the law firm would try their best to proceed with your case. In the event the Immigration Office rejects your green card, we shall refund to you all the money you have paid in to that date."
CCS referred to Kanu two new clients, Mr. Li and Mr. Hu, who would later become complainants against Kanu in her disciplinary proceedings. Both were Chinese students whose United States visas were approaching their expiration dates. Both men wished to remain in the United States and had contacted CCS to find out about immigration benefits available to religious workers. Li and Hu separately met with a representative from CCS and Kanu, and each retained her to handle their visa applications. In 2003, in accordance with Kanu's retainer agreements, Li paid Kanu $7,000 and Hu paid Kanu $6,000. Kanu told Hu that she could obtain a religious worker visa for him within three months, and a green card within a year. Kanu made no similar promise to Li regarding the time it would take to get his visa.
Kanu then prepared visa applications for Li and Hu based on their alleged status as "religious workers," even though the students testified that Kanu knew that neither one was qualified to receive immigration benefits based on that particular status. Li testified that he was concerned that Kanu did not ask him to establish his history of participation in a church at all and had assured him that he would not need to worry about his lack of experience as a religious worker because she would "take care" of the issue for him. Li also testified that Kanu told him that she would "train [him] how to tell [the] Immigration Office, how to convince them [that he was] qualified for [the religious worker visa]." Hu testified that he "did not in fact have any background as a religious worker, did not belong to any denomination, did not attend church, and was not a religious person." When Kanu "asked him if he was a minister or if he had ever worked for a church, he said 'no.'"
After Kanu's initial meetings with Li and Hu and her acceptance of their retainer payments, she had very little communication with them. Li testified that he tried on numerous occasions to contact Kanu about providing the government with documentation that had been requested to support his visa application. Despite his leaving numerous messages at her office, she did not respond to him nor did she provide him with reports concerning the status of his case. Li learned that his visa application had been denied only through his own research on the government's website.
Hu's relationship with Kanu was similar. When he tried to contact her approximately three months after he first paid her a retainer, which coincided with the time by which he thought he could expect to receive his visa, he did not obtain any response. He continued his efforts to make contact with her via fax, telephone and email "at least once, and often many more times, per month." Kanu did not respond to Hu's repeated inquiries for approximately ten months. Like Li, Hu learned that his visa had been denied only by searching the government's website.
After Li and Hu independently learned that their visa petitions had been denied, both students requested refunds from Kanu. Li first left messages for Kanu requesting a refund in July 2004. Kanu testified that after Li initially requested his refund, she told him his case would be reopened, even though Kanu conceded that - for reasons not relevant here - that was not legally possible. In July 2004, Li sent Kanu a certified letter again requesting his refund, and although Kanu's office signed for the letter, she denied that Li requested a refund. In May 2005, however (after Li's complaints about Kanu had made their way to the D.C. Bar), Kanu contacted Li and told him he would receive a refund "within a couple of weeks." Nonetheless, Kanu did not provide the refund, and Li did not hear anything more from her.
Kanu also failed to communicate with Hu about his refund request, which he first made in September 2004. At that time, Kanu asked him to give her until the end of the year to obtain the visa. He agreed, but when he found out from his own research that his visa application had been denied in January 2005, Hu again demanded a refund. Eventually, Kanu told Hu that she would send him his refund but never did so. Kanu explains her failure to repay both clients' refunds by saying that "she had spent the money she had received [from Hu and Li] and had to await receipt of other funds to make good on her promises. She has not received sufficient funds, to date. So, she has not made the requested refunds."
Kanu came to the attention of the D.C. Bar in April 2005, after Li had filed a complaint with the State Bar of Arizona (where Kanu was living at the time). The State Bar of Arizona forwarded the complaint to the California State Bar, which sent it to the Bureau of Citizenship and Immigration Services ("CIS"), which then forwarded Li's complaint to the D.C. Bar. In July 2005, Kanu wrote to D.C. Deputy Bar Counsel Elizabeth A. Herman about Li's allegations, apparently in response to an inquiry from Bar Counsel. (According to the Hearing Committee, "[t]he date and content of the Bar Counsel correspondence or communication that prompted [Ms. Kanu's] response is unclear.") Kanu stated that she was in contact with Li about the amount of the refund due him. Herman asked Kanu for clarification about Li's refund, and Kanu responded in August 2005, indicating that she had "resolved to give [Li] a full refund." Herman again asked Kanu for more information and stated that "[i]f the full refund is not in Mr. Li's hands by September 5, 2005, we will write up charges against you." Kanu then sent Herman a copy of a $7,000 check she said she had sent to Li. Kanu claimed that the postal service returned this check to Kanu as undelivered, but she made no effort to resend the check or to inform Herman that the check had not reached Li. On September 13, 2005, Herman spoke with Li, who told her that he never received Kanu's check; Herman wrote to Kanu again, asking for an explanation, but Kanu did not respond.
On August 24, 2005, Herman notified Kanu by letter that Hu also had filed a complaint against her with the State Bar of Arizona. Herman requested a substantive written response from Kanu no later than September 5, 2005. When Herman received no response, she sent another letter to Kanu, advising her "of the possibility of disciplinary sanctions in the event of her failure to respond" to the inquiry. The letter gave Kanu additional time to provide a response, but she did not do so. Herman spoke with Kanu by phone on September 15 and 28, 2005, and again directed Kanu to respond to the Bar's inquiries about Hu. Kanu did not respond.
In October 2005, a third client of Kanu's, Mr. Kamara, filed a complaint against her. Bar Counsel requested a response from Kanu, who sent a letter asking for a two-week extension within which to file her response. Bar Counsel granted the requested extension, but Kanu did not respond until January 2007 - more than one year later and after the disciplinary hearings in her case had begun.
In March 2006, Bar Counsel filed a three-count Specification of Charges against Kanu. Bar Counsel alleged that in connection with her representation of Li, Hu and Kamara, Kanu had violated five Rules of Professional Conduct:
* Count I (client Li) charged Kanu with violations of Rules
1.15 (d) (failure to safekeep property), 1.16 (d) (failure to return unearned fee), and 8.4 (c) (engaging in conduct involving dishonesty, fraud, deceit and/or misrepresentation).
* Count II (client Hu) charged Kanu with a violation of Rules 1.15 (d), 1.16 (d), 7.1 (false or misleading communications regarding lawyer's services), 8.4 (c) and
8.4 (d) (engaging in conduct that seriously interferes with the ...