In re Keith J. Smith, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 415529)
Submitted March 7, 2013
On Report and Recommendation of the Board on Professional Responsibility (BDN 339-03, 250-04, 357-04, 415-06)
Tony Sangiamo, of the bar of the State of Pennsylvania, pro hac vice, by special leave of the court, was on the brief for appellant.
Wallace E. Shipp, Jr., Bar Counsel, Judith Hetherton, Senior Assistant Bar Counsel, and Joseph N. Bowman, Assistant Bar Counsel, were on the brief for Bar Counsel.
Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.
The District of Columbia Court of Appeals Board on Professional Responsibility recommends that attorney Keith J. Smith be disbarred for violating numerous District of Columbia Bar Rules. We accept the Board's recommendation.
Bar Counsel brought charges against Mr. Smith based on his conduct in four different matters. After holding an evidentiary hearing, the Hearing Committee issued findings of fact and conclusions of law. Neither Mr. Smith nor Bar Counsel took exception to the Hearing Committee's findings of fact, and the Board accepted the findings in their entirety. The Hearing Committee found the following.
In the first matter, Shelia Henderson retained Mr. Smith in connection with the estate of her mother. The primary asset of that estate was a residence owned by Ms. Henderson's grandmother, who had recently died intestate. During the representation, Mr. Smith failed to communicate adequately with Ms. Henderson and failed to perform other basic tasks, such as opening her grandmother's estate, petitioning for appointment of Ms. Henderson as personal representative of her mother's estate, and timely providing an inventory of the property in her mother's estate. Ms. Henderson dismissed Mr. Smith, but he did not withdraw as her attorney of record until nearly two years later. After his dismissal, but before he had withdrawn as Ms. Henderson's attorney of record, Mr. Smith was retained by Ms. Henderson's aunt, Elnora Baker, to administer Ms. Henderson's grandmother's estate, despite the potential conflict of interest between Ms. Henderson and Ms. Baker with regard to the assets of Ms. Henderson's grandmother's estate. Mr. Smith filed a counterclaim against Ms. Henderson on behalf of Ms. Baker when Mr. Smith was still Ms. Henderson's attorney of record in the matter of her mother's estate. Mr. Smith did not notify Ms. Henderson about the conflict of interest or obtain her informed consent or waiver.
In representing Ms. Henderson, Mr. Smith violated the bar rules that require an attorney to provide competent representation, to serve clients with skill and care, to represent clients zealously and diligently, to withdraw from a representation if that representation will violate a bar rule, to withdraw from a representation if discharged, and not to represent conflicting interests or interests adverse to a former client. See D.C. Bar R. 1.1 (a), 1.1 (b), 1.3 (a), 1.7 (a), 1.7 (b)(1), 1.7 (b)(2), 1.7 (b)(3), 1.9, 1.16 (a)(1), 1.16 (a)(3).
The second matter arose after Roena Hawk and Marcel Malloy successfully bid on a property at a District of Columbia tax sale. Ms. Hawk and Mr. Malloy retained Mr. Smith to perform a title search and to foreclose the right of redemption on the property. Mr. Smith filed an action to foreclose and sent a letter to the mortgage holder, Washington Mutual Home Loans, requesting a $2, 220 payment to cover attorney's fees, the title-search fee, and other costs. Mr. Smith did not request that Washington Mutual send the delinquent taxes directly to him. Washington Mutual sent two checks to Mr. Smith's office for $3, 225.49 and $2, 216.13, made payable to "Keith J. Smith, Esquire." The checks bore no identifying information relating to the tax-sale purchase, and Mr. Smith did not know what the checks were for when he received them. Mr. Smith deposited both checks into his trust account.
On April 7, 2004, a little more than five months after Mr. Smith had received the checks, Washington Mutual contacted Mr. Smith to tell him that the checks related to the tax-sale purchase. Of the total amount, Ms. Hawk and Mr. Malloy were entitled to approximately $1, 350 as a refund for the fees they had already paid to Mr. Smith, and the District of Columbia was entitled to $3, 225.49 for delinquent taxes.
Before he learned why Washington Mutual had sent him the funds, Mr. Smith wrote at least thirty-one checks to himself or to "cash" out of the trust account and failed to keep adequate records of the funds. On six occasions, the balance in the trust account fell below the total that was owed to the District of Columbia and to Ms. Hawk and Mr. Malloy, and at one point the account balance was negative. In addition, Mr. Smith did not keep Ms. Hawk and ...