A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 463929) On Report and Recommendation of the Board on Professional Responsibility (BDN 292-04) (BDN 169-06)
Submitted October 26, 2010
Before KRAMER and OBERLY, Associate Judges, and BELSON, Senior Judge.
The Board on Professional Responsibility has filed two separate reports and recommendations with this court concerning respondent, Lucille Saundra White, arising from separate matters that occurred during the same period. In its first report, issued on August 20, 2009, the Board recommended that respondent be suspended for six months and be required to demonstrate fitness as a condition for reinstatement for violating Rule 1.11 of the District of Columbia Rules of Professional Conduct (conflict in successive government and private employment). Respondent filed exception to that report and recommendation of the Board in its entirety. Bar Counsel excepts to the Board's finding that it had not been proved that White violated Rule 8.4 (d) (serious interference with the administration of justice). In a second report, as amended on July 28, 2010, the Board recommended that respondent be disbarred for violating Rule 3.4 (a) (alteration of evidence); Rule 3.4 (b) (falsification of evidence and false testimony); Rule 8.1 (a) (false representation in connection with a disciplinary matter); Rule 8.4 (b) (criminal act that reflects adversely on lawyer's honesty, trustworthiness, or fitness); Rule 8.4 (c) (dishonesty, fraud, deceit or misrepresentation); and Rule 8.4 (d) (serious interference with the administration of justice). Neither respondent nor Bar Counsel filed an exception with respect to that report and recommendation.
The two reports of the Board have been consolidated for review by this court. We adopt the Board's findings and its recommended sanction in the second matter referred to above and set forth in the July 28, 2010, Amended Report. We also adopt the Board's findings and recommended sanctions in the August 20, 2009, Report, other than the Board's determination that Bar Counsel had not proven that respondent violated Rule 8.4 (d). Respondent has filed no briefs with this court in either matter.*fn1 We order that respondent Lucille Saundra White be disbarred.
In a disciplinary case, this court accepts the Board's findings of fact "unless they are unsupported by substantial evidence of record." D.C. Bar R. XI, § 9 (g); In re Pierson, 690 A.2d 941, 946-47 (D.C. 1997). This court reviews the Board's legal conclusions de novo. In re Fair, 780 A.2d 1106, 1110-11 (D.C. 2001). We 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.'" In re Cleaver-Bascombe, 986 A.2d 1191, 1194 (D.C. 2010) (quoting D.C. Bar R. XI, § 9 (h) (2006)). The Board, in turn, is required to accept the factual findings of the hearing committee that are supported by substantial evidence in the record, viewed in its entirety. In re Micheel, 610 A.2d 231, 234 (D.C.1992). "However, the Board owes no deference to the hearing committee's determination of 'ultimate facts,' which are really conclusions of law." Id.
II. August 20, 2009 Report
On August 20, 2009, the Board on Professional Responsibility concluded that respondent violated D.C. Bar Rule 1.11 (conflict in successive government and private employment), stemming from respondent's representation of Ms. Gladys Thomas. During respondent's tenure as head of the investigating unit at the District of Columbia Office of Human Rights ("OHR"), she had supervised the investigation of an age discrimination complaint filed by Ms. Thomas arising out of her discharge from a position with the Department of Consumer and Regulatory Affairs. The investigating agent had provided respondent with a draft Letter of Determination ("LOD") concerning Ms. Thomas's complaint in July 2002; OHR's final LOD advised Ms. Thomas that there was no probable cause to support her complaint.
Ms. Thomas pursued her age discrimination allegation by filing suit in the United States District Court for the District of Columbia on January 9, 2003, the same month that respondent was terminated from OHR. In an e-mail between Ms. Thomas's counsel, Ms. Janet Cooper, and respondent dated January 6, 2004, the two discussed entering a "co-counsel" relationship for Ms. Thomas's suit. In mid-December 2003, respondent had telephoned an unidentified representative at the D.C. Bar Ethics Counsel to inquire about engaging in this representation; however respondent provided only "a partial description of the relevant facts" during that call and specifically omitted her involvement with the Thomas case while she was at OHR. Thereafter, respondent participated in reviewing and editing court filings, including a draft motion on behalf of Ms. Thomas, and attended a deposition of a witness in the case, Bernard Ferguson. Following respondent's attendance at the Ferguson deposition on January 13, 2004, Michael Bruckheim, the attorney representing the District, contacted Ms. Cooper to complain about respondent's involvement as a violation of Rule 1.11; he filed a motion to disqualify respondent and Ms. Cooper after Ms. Cooper refused to withdraw. Ms. Cooper and respondent each filed an affidavit asserting that respondent had not played a substantive role concerning Ms. Thomas's case while at OHR.
On June 29, 2004, U.S. District Court Judge Royce C. Lamberth granted the motion to disqualify both respondent and Ms. Cooper, on the basis that respondent was the supervisor overseeing the investigation of Ms. Thomas's claim while she was at OHR. Bar Counsel filed charges against respondent on July 6, 2005, alleging that she had violated Rule 1.11 and Rule 8.4 (d) (serious interference with the administration of justice), and evidentiary hearings followed from December 2005 through April 2006.
On April 9, 2007, Hearing Committee Number Five found that respondent's representation of Ms. Thomas was adverse to the District of Columbia government, and was on a matter in which respondent had been personally and substantially involved when she worked in OHR. However, the Committee concluded that Bar Counsel had not proven a violation of Rule 8.4 (d).
Bar Counsel filed a brief in support of its exception to the conclusion regarding Rule 8.4 (d) on June 15, 2007. Respondent filed her exceptions to Hearing Committee Number Five's report on June 21, 2007, which was well past an extended due date of May 24, 2007. Oral argument was scheduled on June 21, 2007, but respondent failed to appear. On July 2, 2007, the Board issued an order accepting respondent's lodged brief for filing but denied her request to reschedule oral argument.
On August 20, 2009, the Board issued a report agreeing with the Hearing Committee that respondent had violated Rule 1.11 and that Bar Counsel had not proven a violation of Rule 8.4 (d), and recommended that respondent be suspended for six months and be required to demonstrate fitness as a condition of reinstatement. On November 9, 2009, this court suspended respondent pending final action on the Board's report. On December 21, 2009, Bar Counsel filed with this court a Brief in Support of its Limited Exception to the Board on Professional Responsibility's Failure to Find that Respondent also Violated Rule 8.4 (d). In its brief, Bar Counsel, like the Board, recommends that respondent be suspended for six months for these violations.
We adopt the Board's conclusion as to the Rule 1.11 violation, but disagree with the Board's determination concerning Rule 8.4 (d). We incorporate the Board's report of August 20, 2009, herein as set forth in Appendix A.*fn2
To establish a violation of Rule 8.4 (d), Bar Counsel must show (1) that the attorney acted improperly in that the attorney either "'[took] improper action or fail[ed] to take action when . . . he or she should [have] act[ed]'; (2) that the conduct involved 'bear[s] directly upon the judicial process (i.e., the "administration of justice") with respect to an identifiable case or tribunal'; and (3) that the conduct 'taint[ed] the judicial process in more than a de minimis way,' meaning that it 'at least potentially impact[ed] upon the process to a serious and adverse degree.'" In re Owusu, 886 A.2d 536, 541 (D.C. 2005) (quoting In re Hopkins, 677 A.2d 55, 60-61 (D.C. 1996)) (alternations in original).
The Board concluded that respondent's actions did not clearly satisfy these three criteria. It reasoned that though Judge Lamberth disqualified respondent, a "disqualification motion, without more, does not support a finding that the conduct was a serious interference with the administration of justice." See In re Hallmark, 831 A.2d 366, 375 (D.C. 2003) (requiring more egregious conduct than burden on court's administrative process). The Board also noted that Bar Counsel was unable to cite any case in which a Rule 1.11 violation standing alone supported a Rule 8.4 (d) violation. It was the Board's view that it would have "a pernicious effect on the administration of justice and the representation of individual clients  [i]f the unsuccessful defense of a motion to disqualify were held to constitute sanctionable misconduct . . . ." The Board reasoned that such a holding might lead "lawyers with meritorious defenses [to] . . . withdraw unnecessarily, rather than risk exposure to disciplinary charges."
Board member Mercurio, joined by member Bolze, dissented from the Board's conclusions insofar as they pertained to Rule 8.4 (d). He stated that the Board's conclusion fails to recognize that respondent's conduct met the test for impropriety under the third of the three Hopkins criteria, that "the attorney's conduct must taint the judicial process in more than a de minimis way, that is, at least potentially impact upon the process to a serious and adverse degree. Hopkins, 677 A.2d at 61 (emphasis added)."
The dissenting statement took note of the Hearing Committee's finding that respondent "undertook to act as co-counsel with Ms. Cooper in representing G. Thomas in her federal court suit." Respondent thereby "showed a willingness and an ability . . . to impart OHR confidential information to Cooper and Thomas," and "actually gave them her recollection about Thomas's OHR investigation file and a tape recording of her interview of the OHR investigator in Thomas's case who investigated, or failed to investigate, matters Thomas complained about." This and other related conduct, the statement concluded, "threatened to give Thomas and Cooper a significant and unfair advantage over their adversaries in Thomas's federal action, and thus posed, at the very least, a "'potential impact upon the process [in that lawsuit] to a serious and adverse degree.'"
Bar Counsel, in urging this court to conclude that respondent violated Rule 8.4 (d), cites the dissenting statement of the two Board members, and also notes that Judge Lamberth expressly found that respondent's participation in the deposition of witness Ferguson "'tainted'" the federal court proceedings, leading the court in its words to strike the deposition "'because of the critical interests at stake with respect to the integrity of the judicial system.'" (Brief for Bar Counsel at 14, n.12 (quoting Bar Exhibit 8q at 12-13)). Bar Counsel points out that respondent's misconduct with respect to the federal court action was far more extensive than the evidence brought before Judge Lamberth in connection with the Ferguson deposition, and to make that point refers to some of the misbehavior discussed in the language quoted above from the Board dissent. Bar Counsel also points to respondent's reviewing and editing co-counsel's brief in the federal action, which argued that respondent's former employer, OHR, improperly handled the Ms. Thomas matter that respondent had supervised. (Id. at 28.).
Bar Counsel's position finds support in In re Evans, 902 A.2d 56, 58 (D.C. 2006), where this court found a Rule 8.4 (d) violation based on the conflict arising from counsel's dual roles in a single transaction. Respondent there had a conflict of interest that arose from his dual roles as the owner of a title company that handled real estate closings and as a lawyer whose practice included both probate and real estate matters. He undertook to represent a borrower in order to secure title for her to real property that belonged to the unprobated estate of her deceased mother-in-law, and thereby allow her to go to closing before respondent's title company. The conflict in Evans was less problematic than the conflict involved in the instant case because, as noted in Evans, respondent there could have attempted to secure a waiver of the conflict, something that respondent here doubtless could not achieve.
While we afford great respect to a conclusion of the Board as to whether a disciplinary rule has been violated, we are not persuaded by its reasoning in this instance. Nor do we share its concern that a ruling that respondent's conduct at issue violated Rule 8.4 (d) here would have a "pernicious effect" on the administration of justice and the representation of individual clients. What is before us is not simply a matter involving an attorney who unsuccessfully resisted a motion to disqualify. We consider not only the outcome of the disqualification motion, but also the nature of the misconduct that led to the filing of the motion to disqualify and the related misconduct that was not even before the judge who found that the respondent's misconduct had "tainted" the proceedings.
We conclude that the evidence clearly and convincingly supports the conclusion that respondent violated Rule 8.4 (d) with respect to her conduct during the Thomas litigation in federal court. The actions Judge Lamberth concluded that he was required to take can be said to have affected the judicial process in more than a de minimis manner. The entire litigation was disrupted and delayed while the District Court dealt with the motion to disqualify Ms. Cooper and respondent. Judge Lamberth concluded that respondent's participation had tainted the proceedings and struck the deposition of Bernard Ferguson because of respondent's presence. Ms. Cooper died while Ms. Thomas's Motion to Reconsider was still pending; nevertheless, Judge Lamberth concluded that respondent could not re-enter the litigation because of her taint.
Of still greater significance to the federal court litigation were the related actions cited above that respondent took to share her knowledge of the proceeding before OHR, her former employer, with co-counsel and client, the plaintiff, that threatened to give the plaintiff in the federal action an unfair advantage over her adversary and presented at least a "potential impact upon its process to a serious and adverse degree."
For the foregoing reasons, this court finds that respondent's conduct tainted the judicial process in more than a de minimis way and, contrary to the Board's recommendation, concludes that respondent violated Rule 8.4 (d).
III. July 20, 2010 Amended Report
The charges dealt with in the Board's July 28, 2010, Amended Report arose from respondent's conduct in connection with "whistleblower" claims she alleged against her employer, OHR, and subsequent dealings with the Office of Inspector General ("OIG") and the Council of the District of Columbia in connection with those allegations. We adopt the Board's report (incorporated herein as Appendix B), which sets forth and adopts the Hearing Committee's detailed findings of fact concerning respondent's misconduct, and offer a short summary of those findings of fact here.
Respondent's misconduct arose from a complex series of events, beginning with her hiring at OHR in December 2000. As head of the investigating unit, respondent was partially responsible for the contracting duties of the office. In June 2001, respondent's supervisor began efforts to terminate her employment for performance reasons.
In an apparent attempt to head off her termination, respondent filed a "whistleblower" complaint with OIG on July 20, 2001, regarding an allegedly improper contract between OHR and a private attorney, Vere Plummer. In the sequence of events that followed, respondent engaged in an elaborate and extraordinary series of actions to shore up her allegations of improper contracting by OHR by furnishing documents and other evidence to OIG investigating agents and even to D.C. Council member Vincent Orange. An ensuing investigation by OIG demonstrated that respondent had manipulated and fabricated documents that she presented before the Council and had testified falsely before the Council, purporting to recount events that actually never took place. Bar Counsel initiated his own investigation of respondent and brought the charges now before us. Hearing Committee Number Nine concluded that three documents that respondent introduced as evidence to the Committee were either altered versions of other documents, or of doubtful authenticity. Based on these conclusions, Hearing Committee Number Nine agreed with Bar Counsel that respondent had violated Rules 3.4 (a), 3.4 (b), 8.1 (a) , 8.4 (b), 8.4 (c), and 8.4 (d). The Board subsequently adopted the Hearing Committee's report and recommended disbarrment.
We adopt the Board's report, incorporated herein as Appendix B. We accept the conclusion that it demonstrates by clear and convincing evidence that respondent violated Rules 3.4 (a), 3.4 (b), 8.1 (a), 8.4 (b), 8.4 (c), and 8.4 (d). We turn to a discussion of the appropriate sanctions.
The Board on Professional Responsibility's proposed sanction comes to this court with a strong presumption in favor of its imposition. In re Goffe, 641 A.2d 458, 463 (D.C. 1994). Where this court has concluded that the attorney's conduct falls into a category of dishonesty of a flagrant kind it has held disbarrment to be the appropriate sanction. In re Cleaver-Bascombe, 986 A.2d at 1199. Whether the recommended disciplinary action is appropriate depends on a review of the respondent's violations in light of relevant factors, including "the nature of the violation," "the mitigating and aggravating circumstances," "the need to protect the public, the courts, and the legal profession," and "the moral fitness of the attorney." Id. at 1195 (internal quotation marks omitted).
In evaluating these factors, the Board's report as amended on July 28, 2010, focuses on the seriousness of the conduct, the prior offense (referring to the August 20, 2009, report dealing with the representation of Ms. Thomas), the prejudice it caused to the reputation of OIG employees, and especially the respondent's attitude throughout the proceedings. Regarding respondent's attitude during its investigations, the Board emphasized that "[a]t no point did [r]espondent express any hint of regret or remorse for anything that has happened since 2001 or any acknowledgment of wrongdoing." It also noted her "erratic" behavior, citing her accusation that the Hearing Committee chairman was biased against her. The Board also considered the impact of the prior disciplinary proceedings -- referring to the recommended sanctions for respondent's misconduct in connection with her representation of Ms. Thomas -- as further evidence of inconsistencies in her testimony before the Board. Based on these considerations, the Board concluded that there are no mitigating factors and that disbarrment is warranted based on the severity of the misconduct.
The Board's recommendation of disbarrment is supported by In re Cleaver-Bascombe, where this court disbarred an attorney for submitting fraudulent vouchers for payment under the Criminal Justice Act, even though there the Board had recommended only a two-year suspension. 986 A.2d at 1191. We agree with the Board that here, respondent's actions are even more egregious than Cleaver-Bascombe's because respondent engaged in several episodes of misconduct, and put at risk more careers than just her own. The conduct in question is indeed serious: the record reflects that respondent made false accusations to the Council of the District of Columbia, fabricated evidence to support those accusations, and falsely recounted events that never occurred. Moreover, respondent has not presented a substantive defense to these allegations. The two separate cases of misconduct in question here demonstrate that respondent "lacks the moral fitness to remain a member of the legal profession." Id. at 1200-01. Therefore, disbarrment is the proper sanction in this instance in order to protect the public and the courts, to maintain the integrity of the profession, and to serve as a deterrent. In re Uchendu, 812 A.2d 933, 941 (D.C. 2002). It is ORDERED that Lucille Saundra White is disbarred from the practice of law in the District of Columbia, effective thirty days from the date of this opinion. See D.C. Bar R. XI, § 14 (f). Respondent shall not be eligible for reinstatement for five years from the effective date of disbarrment, pursuant to D.C. Bar R. XI, § 16 (a).
APPENDIX A DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
In the Matter of: L. SAUNDRA WHITE, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 463929)
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
Respondent is charged with violating Rule 1.11 by accepting employment on behalf of Ms. Gladys Graye Thomas in 2003-2004 in a matter on which Respondent had been personally and substantially involved as an employee of the District of Columbia Office of Human Rights in 2002. Bar Counsel also charged her with conduct that "seriously interferes with the administration of justice" in violation of Rule 8.4(d) because her assistance of Ms. Thomas triggered a successful motion for her disqualification in Ms. Thomas' lawsuit against the District of Columbia. The matter was heard by Hearing Committee Number Five (the "Hearing Committee"), which found a violation of Rule 1.11 but not Rule 8.4(d). The Hearing Committee recommended that Respondent be suspended for 30 days and required to demonstrate fitness as a condition of reinstatement.
The Board on Professional Responsibility (the "Board") agrees with the Hearing Committee that Respondent's misconduct violated Rule 1.11 and that Bar Counsel has not proven a violation of Rule 8.4(d). We recommend that Respondent be suspended for six months and be required to demonstrate fitness as a condition of reinstatement.
This disciplinary proceeding was prompted by a complaint filed by counsel for the District of Columbia based on Respondent's disqualification in Ms. Thomas' federal court lawsuit. Bar Counsel filed its Specification of Charges on July 6, 2005. Respondent filed an answer on August 2, 2005, and an amended answer on November 8, 2005. The Hearing Committee conducted six days of evidentiary hearings between December 2005 and April 2006. Bar Counsel filed its Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction on June 1, 2006. After one extension of time, Respondent filed her Opposition to Bar Counsel's Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction on June 22, 2006. Bar Counsel filed its Reply Brief on June 29, 2006. Following submission of proposed findings of fact and conclusions of law from both Bar Counsel and Respondent, the Hearing Committee heard oral argument regarding the evidence and the proposed sanction from both parties on June 30, 2006.
On April 9, 2007, the Hearing Committee issued its Report and Recommendation (the "Hearing Committee Report"), in which it concluded that Bar Counsel met its burden of establishing a violation of Rule 1.11 but had not established a violation of Rule 8.4(d). The Hearing Committee recommended a 30-day suspension with a requirement that Respondent demonstrate fitness as a condition of reinstatement. The Hearing Committee did not credit Respondent's testimony on several key points and concluded that the Rule 1.11 violation was not inadvertent. Although the Committee viewed the underlying circumstances as unique, making a recurrence unlikely, it was sufficiently troubled by Respondent's conduct at the hearing and the manner in which she testified that it recommended that Respondent be required to demonstrate fitness as a condition of reinstatement.
On April 17, 2007, Respondent filed objections to the Hearing Committee findings and recommendations, asserting that the findings are not supported by the record, reflect personal opinions and extrinsic matters that were never introduced or entered in this matter, contain misrepresentations of the facts and misstatements of the law, and show that the Hearing Committee failed to consider Respondent's testimony, the testimony of her witness, and the information and documents provided by Respondent.
On April 19, 2007, Bar Counsel notified the Board of its exception to the Hearing Committee's conclusion that Respondent did not violate Rule 8.4(d). Bar Counsel did not except to the Hearing Committee's findings of fact or its conclusion that Respondent violated Rule 1.11. Bar Counsel also did not except to the Hearing Committee's recommendation of a 30-day suspension with the requirement that Respondent demonstrate fitness as a condition of reinstatement.
Under the briefing schedule established by the Office of the Executive Attorney, Respondent's brief was due on May 14, 2007, and Bar Counsel's brief was due within 15 days after service of Respondent's brief. Oral argument before the Board was scheduled for June 21, 2007.
On May 18, 2007, after the close of business, four days after the deadline for Respondent's brief, Respondent hand-delivered a motion to extend the time to file her exceptions until May 24, 2007. The certificate of service attached to Respondent's motion states that a copy of the motion was also hand-delivered to the Office of Bar Counsel. Respondent's motion was not received for filing by the Board until Monday, May 21, 2007, one week after her brief was due. On May 24, 2007, the Board issued an order granting Respondent's motion to file her brief that day and directing Bar Counsel to file its brief within 15 days after service of Respondent's brief. Oral argument before the Board remained scheduled for June 21, 2007. Respondent did not file her brief on May 24, 2007.
On June 5, 2007, the Board issued another order noting that Respondent failed to file her brief, directing Bar Counsel to file its brief within ten days, and requiring Respondent to seek leave if she intended to participate and file a brief in the matter. The order reiterated that oral argument before the Board remained scheduled for June 21, 2007.
On June 15, 2007, Bar Counsel filed its brief in support of the Hearing Committee's conclusion that Respondent violated Rule 1.11 and recommendation that Respondent be suspended for 30 days and required to demonstrate fitness as a condition of reinstatement. Bar Counsel excepted only to the Hearing Committee's failure to find a violation of Rule 8.4(d) (conduct seriously interfering with the administration of justice).
On June 21, 2007, at 2:00 p.m., Respondent failed to appear before the Board for the scheduled oral argument. She instead telephoned the Office of the Executive Attorney shortly before the oral argument, stating that she thought that she had filed her brief, would be late for the oral argument, and intended to file a motion for leave to submit her brief out of time. When the Board convened to hear oral argument, the Chair of the Board placed this information on the record. Bar Counsel waived its right to present oral argument, and the Board determined that, under Board Rule 13.4(a), Respondent had waived her right to present oral argument based on her failure to file a brief. The case was submitted on the record. Later that day, Respondent hand-delivered a motion to extend the time to file her brief to June 21, 2007 and the time to file her reply brief to June 25, 2007, accompanied by her exceptions to the Hearing Committee Report. In her motion, Respondent stated that she mailed her brief to the Board on May 23, 2007 and enclosed a copy for Bar Counsel but received notice on June 20, 2007 from the Postal Service that her package had been incorrectly addressed and was thus not delivered. In her motion, Respondent also requested that oral argument be rescheduled.
On June 26, 2007, Bar Counsel filed its opposition to Respondent's motion to extend the time to file her brief on the grounds that she failed to present good cause for failure to file a timely brief or to appear for oral argument before the Board. Specifically, Bar Counsel stated that (1) it notified Respondent by telephone on May 31, 2007 that neither the Board nor Bar Counsel had received her brief, (2) the Board's order of June 5, 2007 similarly placed Respondent on notice that her brief had not been received by the Board or Bar Counsel, and (3) Bar Counsel's brief filed on June 15 also noted that Respondent had failed to file a brief, and yet Respondent made no efforts to file her brief prior to June 21, 2007, the date scheduled for oral argument.
On July 2, 2007, notwithstanding Respondent's failure to comply with the Board's briefing deadlines and Bar Counsel's arguments in opposition to Respondent's motion for an extension of time, the Board issued an order accepting Respondent's lodged brief for filing, taking into consideration that Respondent is proceeding pro se and to assist in its review of this matter. Given Respondent's "serial failures" to comply with the briefing deadlines, the Board's order denied Respondent's motion to file a rebuttal to Bar Counsel's brief. The Board's order further denied Respondent's request that the oral argument be rescheduled because she failed to present any grounds in support thereof.
On July 12, 2007, Bar Counsel filed its reply brief to Respondent's exceptions to the Hearing Committee Report, restating its recommendation that the Board find that Respondent violated Rules 1.11 and 8.4(d) and adopt the Hearing Committee's recommended sanction of a 30-day suspension with the requirement that she demonstrate fitness as a condition of reinstatement.
We have closely examined the record, the detailed and comprehensive Hearing Committee Report, and the briefs and oral argument of Bar Counsel and Respondent before the Hearing Committee, as well as the parties' post-hearing briefs. We conclude that the findings of fact and conclusions of law set forth below, which are drawn in substantial measure from the Hearing Committee Report, are supported by substantial evidence in the record, viewed as a whole. Board Rule 13.7; In re Micheel, 610 A.2d 231, 234 (D.C. 1992). Pursuant to Board Rule 13.7, we have made some additional findings, including with respect to post-hearing events, and have summarized and rearranged certain of the Hearing Committee's findings to provide context and further support our conclusions.
A. Respondent's Employment by the District of Columbia Office of Human Rights
1. Respondent was admitted to the District of Columbia Bar on July 9, 1999. She is also a member of the Bars of Texas and Maryland. She has no prior disciplinary history. BX A; BX B; Tr. 3/27/06 at 726.*fn3
2. On or about November 2000, Respondent began employment with the District of Columbia Office of Human Rights ("OHR"), the District agency with responsibility for assessing claims of employment discrimination. On or about July 10, 2002, she was employed as an Employment Opportunity Specialist Supervisor in OHR's main office. In that position, she was responsible for preparation of legal analyses of potential discrimination claims filed by District residents or employees of the District of Columbia. Tr. 12/13/05 at 38-42; Tr. 3/27/06 at 729-32; BX 2.
3. During the relevant time period, OHR determined whether a claimant stated a valid basis for a discrimination complaint by conducting an investigation (interviewing witnesses, reviewing documents) and evaluating whether the facts supported the legal claim. At the conclusion of its investigation, OHR issued a Letter of Determination ("LOD") setting forth the facts as found by OHR, as well as its legal conclusion about whether the complainant's charges stated a claim of discrimination. Tr. 12/13/05 at 33-40.
4. Respondent transferred to OHR's main office as of July 8, 2002, at which time she became responsible for supervising OHR investigator Michelle Thomas ("M. Thomas").
Id. at 43-44; BX 2 at 2. At the time that Respondent assumed this responsibility, M. Thomas was nearing the end of an investigation regarding an age discrimination complaint filed by Ms. Gladys Graye Thomas ("G. Thomas") concerning her discharge from the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA"). Respondent had no involvement in the G. Thomas matter prior to July 10, 2002. Though acknowledging that the evidence was in dispute as to whether M. Thomas continued to report to her prior supervisor with respect to the G. Thomas matter, the Hearing Committee found that Respondent supervised M. Thomas on the matter after July 10, 2002, when she was concluding OHR's investigation and preparing the LOD. Tr. 12/13/05 at 184; HC Rpt. ¶ 4.
5. M. Thomas testified before the Hearing Committee and identified contemporaneous time records to support her testimony that in July 2002, she provided to Respondent, her new supervisor, a draft LOD concerning the G. Thomas file and that she had received from Respondent comments or edits on the draft. Tr. 12/13/05 at 188-95; RX 12. Respondent testified that she did not review the draft LOD regarding G. Thomas prior to its issuance on August 30, 2002, and submitted several written denials to the same effect. E.g., Tr. 3/27/06 at 795; BX 2 at 2-3; RX 2. Respondent further testified and provided some documentary support for the conclusion that in 2002, when her performance at OHR was being reviewed, she specifically disavowed involvement in the review or issuance of the G. Thomas LOD. Tr. 3/30/06 at 988-89; RX 18. If existing copies of Respondent's edits to the draft LOD remain, they were not located or produced during the hearing in this matter. The Hearing Committee credited the testimony and documents provided by M. Thomas over that of Respondent on this issue and found that Respondent reviewed and commented on the draft LOD in July/August 2002. HC Rpt. ¶ 5. Respondent has challenged this finding in her June 21, 2007 exceptions to the Hearing Committee report, arguing that it was improper for the Hearing Committee to credit the testimony of M. Thomas because that testimony was "heavily disputed by Respondent and other witnesses' testimony and numerous documents." Respondent's Brief to the Board ("Respondent's Brief") at 3. Determinations concerning credibility of the witnesses and the weight, value and effect of the evidence "fall primarily within the sphere customarily left to the factfinder . . . ." In re Temple, 629 A.2d 1203, 1208 (D.C. 1993); see also Micheel, 610 A.2d at 234. The Hearing Committee heard the testimony and observed the demeanor of the witnesses and was in the best position to make such determinations. We have considered Respondent's arguments, reviewed the record and have determined that its factual findings with respect to M. Thomas' testimony are supported by substantial evidence in the record.
6. On August 30, 2002, a final LOD was issued to G. Thomas and delivered to her lawyer, Ms. Janet Cooper. The letter was signed by OHR General Counsel, Ms. Julie Lee, on behalf of OHR Interim Director, Ms. Nadine Wilburn. The LOD reflected the agency's determination that there was no probable cause that G. Thomas had been discriminated against on the basis of age when she was terminated from her position with DCRA. The LOD advised G. Thomas that she could file for reconsideration of this finding within 15 days of receipt of the letter. Respondent was identified by name in the LOD as the Equal Opportunity Specialist Supervisor whom G. Thomas should contact if she had any questions about the matter. BX 9.
7. During September and October 2002, after the LOD was issued, G. Thomas made a number of telephone calls and personal visits to OHR regarding her file and the LOD. Respondent participated in at least some of these calls and met with G. Thomas on at least one occasion when G. Thomas visited OHR to review the contents of the investigatory file. Tr. 3/27/06 at 750-55; Tr. 2/15/06 at 423-24. While it is not clear that the two discussed the substance of G. Thomas' age discrimination complaint, the Hearing Committee found that Respondent was aware that G. Thomas believed that documents had been improperly taken out of, or placed into, her employment file which might have affected the outcome of the LOD. HC Rpt. ¶ 7. G. Thomas never filed a formal request for reconsideration but did communicate her concern, orally and in writing to OHR personnel, including Respondent, that OHR had mishandled her file and her case. Respondent also testified that she "verif[ied] with [G. Thomas]" that G. Thomas knew "she had a right to reconsider the case." Tr. 3/27/06 at 754; Tr. 2/15/06 at 455-60; BX 6 at 3-16; RX 2 (email dated Oct. 1, 2002); BX 8o (White affidavit ¶ 26); BX 8t at Ex. 6 and Ex. 7.
8. In January 2003, Respondent was terminated from her position with OHR. Tr. 12/13/05 at 119-20. The termination followed several months of internal discussions about her job performance, as well as a written performance improvement plan. RX 5.
One of the issues raised by OHR supervisors prior to Respondent's termination was the quality and extent of her supervision of other people, including M. Thomas. The Hearing Committee reviewed several e-mails, as well as a lengthy tape-recorded meeting between Respondent and her supervisor, Nadine Wilburn. BX 6. While these materials were not conclusive as to whether Respondent had substantive involvement in the G. Thomas file prior to the issuance of the LOD, they demonstrate that Respondent was involved personally and substantially in the G. Thomas matter after the issuance of the LOD. The G. Thomas file and how it was handled were central issues in connection with Respondent's evaluations and eventual termination. HC Rpt. ¶ 8; Tr. 12/13/05 at 59-64.
B. Respondent's Representation of Gladys Thomas
9. On January 9, 2003, G. Thomas, through her attorney, Ms. Cooper, filed suit in the U.S. District Court for the District of Columbia, alleging that she was a victim of age discrimination in connection with her discharge from DCRA, the same allegation she had made in her earlier complaint filed with the Office of Human Rights. BX 8b.
10. During November 2003, Respondent was contacted by Ms. Cooper, apparently to determine whether Respondent should be a witness in G. Thomas' case against the District of Columbia. BX 4 (fax cover sheet dated November 23, 2004 (note that the date is erroneous and should read "2003")). G. Thomas listed Respondent as a possible witness in her discovery disclosure in the federal court action. BX 8f (discovery disclosure). When she was contacted by Ms. Cooper, Respondent was employed in private practice, specializing in employment discrimination cases. Tr. 3/27/06 at 803-05.
11. Respondent told Ms. Cooper that she should not be a witness in the case because she did not have information about the G. Thomas file, not having been involved in the issuance of the LOD. Respondent did share with Ms. Cooper her recollection of the G. Thomas file. Id. at 792-93 ("I [Respondent] told her [Ms. Cooper] that I had no information. Because, first of all, even though I had reviewed portions of the file, there was nothing there. I mean because there was nothing there. I mean there was nothing that was confidential in the file. There was nothing there that I could recall and I had not prepared it. I had not looked at it. I had not looked at the investigation. I had no contact at all with her. The only thing I did was after the fact when Nadine Wilburn questioned me on my analysis of Michelle Thomas' performance.").
12. Respondent and Ms. Cooper proceeded to discuss the possibility of Respondent entering into a "co-counsel" relationship with Ms. Cooper, with the first matter they would work on together being the G. Thomas federal court discrimination suit. Id. at 803-05; BX 4 (email dated January 6, 2004).
13. In December 2003, Ms. Cooper asked Respondent to review and edit a significant motion in the federal court action, by which G. Thomas sought reconsideration of the federal court's denial of leave to amend her discrimination complaint to add allegations of sex discrimination. BX 4. The court had previously denied leave to amend, in part because G. Thomas had failed to exhaust her administrative remedies before OHR. The exhaustion issue, in turn, required an examination of the scope of the claim filed with, and investigated by, OHR. Thus, G. Thomas sought to demonstrate in her motion for reconsideration that the way her file had been handled at OHR did not preclude her new effort to amend her complaint to add sex discrimination. BX 8g.
14. Respondent reviewed the draft motion and advised Ms. Cooper that her "analysis appears to be sufficient." BX 4. She also reviewed the legal citations for accuracy. Id. The Hearing Committee concluded that, beginning in December 2003, Respondent undertook to act as co-counsel with Ms. Cooper in representing G. Thomas in her federal court suit. HC Rpt. ¶ 12.
15. At the same time, Ms. Cooper also invited Respondent to attend upcoming depositions in G. Thomas' case, including the deposition of M. Thomas, the OHR investigator, whom Respondent supervised. Respondent answered Ms. Cooper's invitation in a document dated December 19, 2003:
I am also in receipt of your deposition schedule for DCRA's witnesses. I will review my schedule to determine my availability. I agree with you that my attendance at these depositions will allow me to become more familiar with Gladys' ADEA action against DCRA. However, I am puzzled at why you are deposing Michelle Thomas. I am certain that D.C. Government will object to you asking Michelle questions on her investigation of Gladys' complaint under the D.C. Human Rights Act. Michelle was not investigating Gladys case for DCRA or investigating her claim under ADEA. I have concerns about being present during a deposition of Michelle Thomas because (a) my attorney plans to depose Michelle Thomas during my wrongful termination case; and (b) even though I was not involved in the investigation of OHR's No Probable Cause decision in Gladys' case, my name is listed on Gladys Letter of Determination. I will get back with you with respect to other issues regarding my present [sic] or role during the deposition of Michelle Thomas.
BX 4 (fax cover sheet dated December 19, 2003). This document made clear that Respondent was seeking to serve as a lawyer for G. Thomas ("my attendance at those depositions will allow me to become more familiar with Gladys' ADEA action against DCRA").
16. Ms. Cooper likewise invited Respondent to attend the deposition of Bernard Ferguson, one of G. Thomas' supervisors at DCRA, scheduled for January 13, 2004. Respondent testified that she was concerned about attending the deposition because she was not admitted to practice before the U.S. District Court for the District of Columbia. Tr. 4/27/06 at 1332-33. In mid-December, 2003, Respondent made a call to an unnamed representative at the D.C. Bar Ethics Counsel. Tr. 3/27/06 at 825-26. Respondent told the D.C. Bar Ethics Counsel that she had concerns because "someone" wanted her to assist in a case that was in OHR while she was employed at that office. Id. Respondent provided a partial description of the relevant facts, but omitted her involvement with the G. Thomas matter after the issuance of the LOD. Id. at 817-30; BX 4 (email dated January 6, 2004). Respondent also testified that she had a similar conversation with an unnamed practicing attorney who did not appear before the Hearing Committee (or before the federal court when it considered the District of Columbia's disqualification motion). Tr. 3/27/06 at 825-29; BX 8q.
17.Respondent attended the Ferguson deposition on January 13, 2004. There was a great deal of testimony before the Hearing Committee about the circumstances of the deposition; the role that Respondent played or appeared to play, including whether she provided questions to Ms. Cooper; and even whether Respondent was introduced at the deposition as one of G. Thomas' lawyers. HC Rpt. ¶ 16. Respondent testified that she attended the deposition merely as an "observer," Tr. 3/27/06 at 831, 848, but also testified that Ms. Cooper may have asked her to review her draft questions in advance of the deposition. Id. at 831. The Hearing Committee found that Respondent's conduct during and after the deposition demonstrated that she was functioning as a lawyer assisting Ms. Cooper in the representation of G. Thomas. HC Rpt. ¶ 16; see supra ¶¶ 13-14.
C. Disqualification and Disciplinary Proceedings
18. Immediately after the Ferguson deposition, Michael Bruckheim, the attorney representing the District of Columbia, contacted Ms. Cooper to complain that Respondent's participation violated Rule 1.11 and that Ms. Cooper herself violated Rule 5.1(c) by allowing that participation. Mr. Bruckheim stated that if Ms. Cooper did not withdraw from representation, he would file a motion to disqualify. When Ms. Cooper refused to withdraw, the District filed a motion seeking to disqualify both Ms. Cooper and Respondent from representing G. Thomas. BX 8k.
19. In opposing the disqualification motion, Ms. Cooper and Respondent each filed affidavits asserting that Respondent had not played a substantive role while at OHR concerning the LOD. BX 8o. Respondent stated that she had not reviewed the draft LOD before it was issued. Both Ms. Cooper and Respondent acknowledged, however, that Respondent played some role in connection with the G. Thomas file. Id. Meanwhile, Ms. Cooper and the District sparred over whether the deposition of Bernard Ferguson should be stricken because of Respondent's participation. BX 8o; BX 8p. At no time in opposing the motion to disqualify did either Ms. Cooper or Respondent assert that Respondent was not acting as counsel to G. Thomas and therefore could not be disqualified. BX 8o.
20. In a Memorandum Opinion and Order filed June 29, 2004, U.S. District Court Judge Royce C. Lamberth granted the District's motion to disqualify counsel and struck the deposition of Bernard Ferguson because Respondent's participation tainted the proceedings. BX 8q. Judge Lamberth found that Respondent had a supervisory role while at OHR concerning the G. Thomas case and that Respondent had engaged in some communications at that time with G. Thomas about the OHR process:
White's former employment at OHR and rapport with the plaintiff as a representative of OHR in her phone conversations with the plaintiff substantially relates to the issues presented in the instant case. Whether or not White satisfied her supervisory responsibilities at OHR and did in fact review Thomas' investigation of the plaintiff's claim prior to the issuance of the Letter of Determination, White did have a substantial responsibility to oversee Thomas's work products.
21. G. Thomas moved for reconsideration of the Court's order disqualifying her counsel. BX 8r. While that motion was pending, Ms. Cooper died. BX 8u. Respondent was working out of Ms. Cooper's office at the time of Ms. Cooper's death and took over some of Ms. Cooper's files. Tr. 3/30/06 at 927-28. After Ms. Cooper died, G. Thomas urged Judge Lamberth to reconsider his disqualification order with respect to Respondent because she and other "associates" of Ms. Cooper, had to "determine whether they can assist Plaintiff in this matter." BX 8v. Judge Lamberth later denied the motion for reconsideration of his disqualification order, noting that Respondent "cannot now assist [G. Thomas] in this matter." BX 8w.
The Hearing Committee determined that Respondent violated Rule 1.11 but that her misconduct did not violate Rule 8.4(d) because the disqualification motion, which was resolved by the presiding judge, "did not trigger any additional or unusual impacts on the case which 'seriously interfered' with the administration of justice." HC Rpt. ¶ T. The Board concurs that Bar Counsel proved by clear and convincing evidence a violation of Rule 1.11 and that no violation of Rule 8.4(d) was proven.
Rule 1.11(a) states in pertinent part:
A lawyer shall not accept other employment in connection with a matter which is the same as, or substantially related to, a matter in which the lawyer participated personally and substantially as a public officer or employee.
Rule 1.11 serves several distinct but related purposes. It provides assurance to the public that government lawyers will not skew their conduct of official business to gain advantage in subsequent private employment. Similarly, it prevents individuals from seeking to profit at the public's expense by using their government positions to further their private interests later. The rule also ensures that the government as a former client will enjoy the same loyalty and confidentiality to which private clients are entitled. See generally Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37, 44-47 (D.C. 1984) (en banc) (discussing DR 9-101(B)); D.C. Bar Op. No. 16 (1976) (same); ABA Formal Opinion No. 409 (1997) (discussing Model Rule 1.11). As we explain below, the Board finds that Respondent's subsequent employment on behalf of G. Thomas ran directly counter to these purposes.
The Rule 1.11 inquiry requires resolution of three issues:
(1) Has the lawyer "accepted employment" outside her work as a public officer or employee?
(2) Is the subsequent employment on a "matter which is the same as, or substantially related to" an earlier matter?
(3) Was the earlier matter one in which the lawyer "participated personally and substantially"?
The Hearing Committee concluded, and the Board concurs, "that all three elements of the Rule 1.11(a) violation were proved by clear and convincing evidence." Id. at ¶ D.*fn4
"The [Hearing] Committee allowed for extensive questioning of all relevant witnesses by both sides and, in particular, allowed Respondent ample time to present witnesses who might have testimony relevant to the three elements of the Rule 1.11(a) inquiry." Id. Further, the Hearing Committee "considered the affidavit testimony provided by the late Ms. Cooper to the federal court in connection with the disqualification motion, as well as the contents of the files provided by Ms. Cooper to Bar Counsel, and which contained emails sent by Respondent to Ms. Cooper. The evidence was admitted without objection and was relied upon by" each of the parties. Id.
Respondent has excepted to the Hearing Committee's conclusions with respect to each element of the Rule 1.11(a) violation, rearguing her version of events, which the Hearing Committee considered and rejected.*fn5
1. "Acceptance of Employment"
The Board accepts the Hearing Committee's finding, by clear and convincing evidence, "that Respondent accepted employment in connection with the G. Thomas matter during the period late 2003 [through] early 2004." Id. at ¶ E. Acceptance of employment does not require a formal retention, nor does it require that the attorney be paid for the work.*fn6 Rather, the term contemplates only that the attorney has agreed to provide services. See In re Lieber, 442 A.2d 153, 156 (D.C. 1982).
Respondent's acceptance of employment is demonstrated by the undisputed evidence that she provided legal services for the benefit of G. Thomas. See In re Sofaer, 728 A.2d 625, 629 (D.C. 1999) (provision of services evidences acceptance of employment). She consulted with Ms. Cooper and reviewed draft papers prepared by Ms. Cooper to be filed in G. Thomas' federal court case. She provided substantive and grammatical comments on the drafts and appraised the analysis. She was copied on communications from opposing counsel, BX 1 at 10, and attended a deposition. "Respondent could not provide any reasonable explanation to the [Hearing] Committee about why she was editing legal papers or attending a deposition in the G. Thomas suit if she was not in fact acting as a lawyer for G. Thomas." HC Rpt. ¶ 12; Tr. 4/27/06 at 1321-23.
Respondent demonstrated again and again her contemporaneous understanding that she was acting as counsel to G. Thomas. She expressed concern about participating in the Ferguson deposition because she was not a member of the bar of the federal district court in which the lawsuit was pending. She sought guidance from the D.C. Bar about the effect of the ethics rules on her work on the G. Thomas matter, something that would have been unnecessary if she were not acting as counsel. She advised Ms. Cooper prior to the deposition of M. Thomas that she would "review the Bar's ethical rules to determine what my role should be with respect to questioning Michelle Thomas especially since my name [is] in the Letter of Determination." BX 4 (note dated December 19, 2003). These concerns suggest that Respondent herself thought that she was acting as a lawyer assisting in the representation of G. Thomas.
Her response to the motion to disqualify also demonstrates that Respondent believed herself to be acting as counsel. That motion placed squarely in issue the propriety of Respondent's presence and role at the Ferguson deposition. Respondent and Ms. Cooper each filed a detailed affidavit in opposition to the proposed disqualification, but nowhere did either state that Respondent was not representing G. Thomas. BX 8. But if Respondent were not serving as G. Thomas' lawyer, one would expect that the federal court would have been told that there was no basis to "disqualify" Respondent since she was not acting as counsel. In short, Respondent's protestations that she was an "observer" or even that she was acting in furtherance of her own lawsuit against the District, are simply belied by the evidence of employment. Tr. 3/27/06 at 847-48.
The Hearing Committee correctly discounted the testimony of G. Thomas that she never hired Respondent, never paid her and did not regard Respondent as her lawyer. HC Rpt. ¶¶ 12, F. It was not necessary for Respondent to have contracted directly with G. Thomas in order for Respondent to render services in connection with Ms. Thomas' lawsuit. Ms. Cooper, as G. Thomas' lawyer, enlisted Respondent's assistance. Moreover, as the Hearing Committee noted, the evidence shows that G. Thomas was aware of Respondent's involvement on her behalf and later sought Respondent's assistance in preparing the motion for reconsideration of Judge Lamberth's order disqualifying counsel. HC Rpt. ¶ F.
Whether a second matter is the same or substantially related to an earlier matter is determined by "a practical [inquiry] asking whether the two matters substantially overlap." Sofaer, 728 A.2d at 628. The "same matter" test involves examining "the extent to which the matters involve the same basic facts, related issues, the same or related parties, time elapsed, the same confidential information, and the continuing existence of an important [government] interest." 5 C.F.R. § 2637.201(c)(4) (discussing "same particular matter" under 18 U.S.C. § 207(a)). Two representations involve the same matter if they relate to the same discrete, identifiable transactions or conduct involving a particular situation and specific parties. See Sofaer, 728 A.2d at 627; see also id. at 643 ("The same issue of fact involving the same parties and the same situation or conduct is the same matter") (Board report adopted by and appended to opinion of D.C. Court of Appeals). Matters are substantially related if it is reasonable to infer that confidential information gained in the course of the first matter would be relevant to the second. Brown, 486 A.2d at 49-50 (determining whether counsel for a private real estate developer should be disqualified in zoning proceeding where counsel previously represented the District government in prior transactions relating to the same property); Sofaer, 728 at 643-45. The lawyer may rebut this presumption only by showing that the two matters did not overlap. Brown, 486 A.2d at 49-50; Sofaer, 728 A.2d at 643-45.*fn7
The Board concludes that the overlap here was substantial and that the evidence supports the conclusion that the matters were substantially related. An investigation and ensuing litigation centering on the same historical event involving specific parties are the same matter. Sofaer, 728 A.2d at 646 (rejecting an argument by the former Legal Advisor to the State Department that the investigation and the criminal litigation regarding the Lockerbie airline bombing were separate matters). The matter before OHR and the lawsuit centered on the termination of Ms. Thomas' employment, a single historical event involving specific parties. Id. at 627. G. Thomas' federal court action was based on the same claim of age discrimination that the OHR had investigated. G. Thomas' exhaustion of her administrative remedies within OHR was a precondition to that lawsuit. At the time that Respondent began working on the G. Thomas lawsuit in late 2003, G. Thomas was seeking to amend her age discrimination complaint to add a claim of sex discrimination. The immediate critical question in late 2003 was whether she had exhausted her administrative remedies at OHR on that claim. Respondent was therefore providing legal assistance to G. Thomas on the issue of how Respondent's former employer, OHR, had handled the G. Thomas matter at the time that Respondent had responsibility for the G. Thomas file. As the Board stated in the report adopted by the Court in Sofaer, "[i]t would be strange indeed if Rule 1.11(a) permitted a government lawyer to know the confidential course of an investigation into an act, take some responsibility for legal reaction to those events, but then turn around in private practice and represent an alleged perpetrator of those same acts." Id. at 647.
Further, Respondent's counsel conceded at the outset of the hearing that it would be an "untenable position" to assert that the two matters were not substantially related within the meaning of Rule 1.11(a). Tr. 12/13/05 at 25-26. In her post-hearing submission to the Hearing Committee, Respondent conceded that "the Gladys Graye Thomas age discrimination complaint under the D.C. Human Rights Act, which was investigated by the District of Columbia Office of Human Rights ("OHR") bear (sic) strong resemblance to the complaint filed by Gladys Graye Thomas in the United States District Court for the District of Columbia under ADEA (Age Discrimination Employment Discrimination Act)." Respondent's Opposition to Bar Counsel's Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanctions, at 33.
The Hearing Committee correctly concluded that the second factor of the Rule 1.11(a) inquiry was satisfied by clear and convincing evidence.
3. "Personal and substantial participation"
The third inquiry -- whether Respondent participated "personally and substantially" in the prior G. Thomas matter -- was the question on which the parties focused most of their argument and evidence. "Substantial participation" means that the employee's involvement must be of significance to the matter or create a reasonable appearance of such significance. Sofaer, 728 A.2d at 643. A single act of approving or participating in a critical step may be substantial if the act is of significance to the matter. Id. at 643. This requires more than official responsibility, knowledge, perfunctory involvement, or involvement in only administrative or peripheral issues. Id. at 643 (citing 5 C.F.R. § 2637.201(d)(1)); see also Whether a Lawyer May Continue to Represent a Client When That Lawyer Represented the Same Client in the Same Matter While Serving as a Public Officer or Employee, District of Columbia Bar Legal Ethics Committee Opinion 313 (2002).
Respondent contended that, even if she had titular supervisory responsibility for the G. Thomas file at OHR, she did not, in fact, have personal, substantial, material input into the LOD and its conclusions. Respondent sought to show that: (a) the G. Thomas investigation was nearing completion when Respondent transferred into the main OHR office in July 2002; (b) M. Thomas continued to report to a previous supervisor on some matters even after Respondent was appointed her supervisor; (c) the LOD itself was not signed by Respondent; and (d) when issues of Respondent's performance were raised in late 2002, Respondent complained that M. Thomas had sent out the LOD without her prior approval. Although these issues were generally undisputed, Respondent's arguments focused almost exclusively on the G. Thomas file before the issuance of the LOD, whereas the G. Thomas "matter" extended further to the subsequent discussions about "reconsideration" of the LOD, removal of materials from the G. Thomas file, and G. Thomas' complaints about OHR. The Hearing Committee correctly determined that for purposes of its inquiry, the G. Thomas "matter" was not concluded with the issuance of the LOD, contrary to Respondent's assertions.
The Board agrees that the record contains clear and convincing evidence that Respondent was personally and substantially involved in the G. Thomas matter while Respondent was employed by the District. As reflected in Finding of Fact No. 5, the Hearing Committee concluded that Respondent reviewed and commented on the LOD before its issuance, that she was given the draft and in fact reviewed it, as M. Thomas testified. The Hearing Committee further concluded that Respondent had access to, reviewed, and was aware of, the contents of the G. Thomas file after the issuance of the LOD and communicated directly with G. Thomas regarding "reconsideration" of the LOD decision. See Findings of Fact Nos. 7-8; Tr. 3/27/06 at 750-55; Tr. 2/15/06 at 455-60. All the relevant witnesses -- Respondent, her supervisor, M. Thomas, and G. Thomas -- and all the ...