A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 462384)
On Report and Recommendation of the Board on Professional Responsibility (BDN 120-04, 165-04, 388-04, 375-05, 001-07, 131-07, 428-07 & 456-07)
(Submitted April 24, 2012
Before WASHINGTON, Chief Judge, and FISHER and EASTERLY, Associate Judges.
Having found that Respondent, Richard A. Samad, committed 40 violations of 14 different Rules of Professional Conduct in six matters, the Board on Professional Responsibility has recommended: (1) that Respondent be suspended for the maximum period of three years; (2) that Respondent should be required to demonstrate his fitness to practice law before he is reinstated; and (3) that, as a condition of reinstatement, Respondent should be required to make restitution to one of his clients, Mr. Williams, in the amount of $2,500 plus interest at the legal rate. The facts underlying the Board‟s recommendation are largely undisputed, but Respondent has nevertheless noted a variety of exceptions to the Board‟s legal conclusions and recommended sanction. For the reasons stated below, we find no merit to Respondent‟s exceptions, and we adopt the Board‟s recommended sanction.
Respondent was charged by Bar Counsel with 55 violations of the District of Columbia Rules of Professional Conduct ("Rules") in connection with his representation of six clients during a five-year period. The Hearing Committee held four days of hearings and concluded that Respondent had committed 40 violations of the Rules in connection with these six matters. It recommended that Respondent be suspended for 21 months, that he be required to demonstrate his fitness to practice law before being reinstated, and that he make restitution to one of his clients in the amount of $2,500 plus interest at the legal rate as a condition of reinstatement. With limited exceptions, the Board adopted the Hearing Committee‟s factual findings and found that the Hearing Committee‟s conclusions of law were supported by clear and convincing evidence. However, in light of the number of violations, the pattern of conduct revealed during the hearing, and Respondent‟s failure to comprehend the obligations he assumed under the Rules or to take responsibility for his failure to abide by such obligations, Bar Counsel requested and the Board recommended a longer (three-year) period of suspension. Except as otherwise noted, Respondent does not take exception to any of the Board‟s factual findings, which are summarized below.
Duane Williams was charged with a felony drug violation and was free on his own recognizance pending trial when he retained Respondent after Respondent contacted him. Respondent replaced Mr. Williams‟ court-appointed lawyer. The case was set for a jury trial to begin on January 8, 2004, before Judge Retchin. Respondent did not appear as scheduled to begin trial. When he finally appeared, he advised Judge Retchin that he was "in trial" or "completing a trial" with Judge Ross. In fact, the evidentiary portion of that trial had concluded and the jury had begun deliberations. When pressed by Judge Retchin, Respondent acknowledged the true status of his case before Judge Ross. He then asserted that he was unprepared to go to trial and requested a continuance, which the judge denied.
Mr. Williams was in the courtroom during this discussion and was aware that Respondent was not prepared for trial. Respondent had not talked to any of the witnesses suggested by Mr. Williams or undertaken any other investigation or pre-trial preparation, had not prepared or filed any pre-trial motions, had not filed a motion to suppress Mr. Williams‟ confession, had not drafted or sent a "Rosser" letter, and had not prepared an opening statement. Rather, Respondent testified that he planned to employ a "set-up" defense based on his review of the file, his conferences with the client, and possibly the testimony of the arresting police officers.
When Mr. Williams learned that the trial was going forward, he "went into a panic because [he] had no defense prepared." He was also concerned that he had not received a plea offer. Mr. Williams left the courtroom during a break while the jury panel was brought to the courtroom. When Mr. Williams did not return to the courtroom, Judge Retchin issued a bench warrant for his arrest. Once apprehended, Mr. Williams requested a new lawyer, and his request was granted.
The Board found substantial evidence to support the Committee‟s findings and violations of Rules 1.1 (a) (failing to provide competent representation), 1.1 (b) (failing to serve a client with the skill and care commensurate with that generally afforded to clients by other lawyers in similar matters), 1.3 (a) (failing to represent a client zealously and diligently), 1.4 (b) (failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), 1.16 (d) (failing, upon termination of the representation, to take timely steps to protect a client‟s interest by refunding any advance payment of unearned fees), 3.3 (a)(1) (knowingly making a false statement of material fact or law to a tribunal), 8.4 (c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4 (d) (engaging in conduct that seriously interferes with the administration of justice).
Respondent represented Alfred Carthens in a criminal matter, and a jury trial began on March 4, 2004. At the end of the first day, the trial court instructed the parties, Respondent, and the jury panel to return to court the next morning at 11:00 a.m. The next morning, March 5, 2004, Respondent failed to appear at 11:00 a.m. and failed to timely notify the court that he would be late. He arrived in the courtroom at 12:04 p.m. He told the trial judge that he was late for court because he felt ill that morning. He failed to acknowledge the significant disruption caused by his delay, and expressed no remorse. The trial judge admonished him for his "cavalier" attitude, excused the jury panel, and recused himself from the case.
The Board found substantial evidence to support the Hearing Committee‟s findings that Respondent violated Rules 3.4 (c) (knowingly disobeying an obligation under the rules of a tribunal), and 8.4 (d) (engaging in conduct that seriously interferes with the administration of justice).
On March 29, 2004, Andre McAllister was sentenced to one year in prison for violating his probation. On April 26, 2004, prior to retaining Respondent, Mr. McAllister filed a letter with the court requesting a reduction in his sentence.
On April 29, 2004, Mr. McAllister retained Respondent to assist him in obtaining a sentence reduction. Respondent charged Mr. McAllister a flat fee of $1,500, of which Mr. McAllister‟s fiancee paid $1,250. The retainer agreement provided that Respondent would "study and review [the case] and . . . advise Andre McAllister . . . on the next best course of action." WhenMr. McAllister asked Respondent to file a motion for reduction of sentence, Respondent advised Mr. McAllister that he would require an additional fee of $300 as well as a payment of the outstanding $250 on his initial matter. When neither was paid, Respondent did not file a motion, tell Mr. McAllister that he did not file a motion, or inform Mr. McAllister that he was withdrawing from the matter.
Mr. McAllister was subsequently transferred to a federal correctional facility in Morgantown, West Virginia. He called Respondent from Morgantown twice, once to find out why he had been moved and the second time to request a refund of the legal fee. The record is unclear as to how Respondent responded to the first question, but he never produced a copy of the motion and never returned any portion of the fee. Mr. McAllister testified that, with respect to the second call, "he was rushing me off the phone. He really didn‟t say to [sic] much about it. He said . . . he‟d talk to me, he‟s busy . . . [he‟d] give me a call." Respondent never made any efforts to get back in touch with Mr. McAllister and never returned phone calls from his family. Subsequently, Mr. McAllister filed a "Pro se Motion for Production of Documents" with the court, requesting that it provide him with a copy of the motion. The court contacted Respondent and advised him that no motion had been filed. The court provided Mr. McAllister with a copy of his criminal docket sheet.
The Board found substantial evidence to support the Committee‟s findings and violations of Rules 1.1 (a) (failing to provide competent representation), 1.3 (a) (failing to represent a client zealously and diligently), 1.3 (b)(1) (intentionally failing to seek the lawful objectives of a client), 1.4 (a) (failing to keep a client reasonably informed about the status of a matter or comply with reasonable requests for information), 1.4 (b) (failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation), and 1.16 (d) (failing, upon termination of the representation, to take timely steps to protect a client‟s interests). The Board also found, based on the Committee‟s factual findings, that Bar Counsel had established by clear and convincing evidence that Respondent had violated Rule 1.3 (c) (failing to act with reasonable promptness in representing a client).
In August 2006, William Montgomery was held in custody without bond on felony charges and was being represented by a court-appointed attorney. Respondent contacted Montgomery‟s grandmother, Florence Ginwright, and told her that he could help Montgomery for a fixed fee of $2,500. Ms. Ginwright paid Respondent a portion of the fee. Respondent never told Ms. ...