May 17, 2018
Member of the Bar of the District of Columbia Court of
Appeals (Bar Registration No. 471812)
Report and Recommendation of the Board on Professional
Responsibility (Board Docket No. 15-BD-118) (BDN-431-13)
D. Burger for respondent.
Hamilton P. Fox, III, Disciplinary Counsel, with whom Julia
L. Porter, Senior Assistant Disciplinary Counsel, was on the
brief, for the Office of Disciplinary Counsel.
Fisher, Beckwith, and McLeese, Associate Judges.
Board on Professional Responsibility (the Board) recommends
that respondent Seth Adam Robbins be suspended for sixty days
from the practice of law and, prior to reinstatement,
complete four hours of ethics-related Continuing Legal
Education (CLE) because of clear and convincing evidence that
Mr. Robbins failed to keep a client reasonably informed about
the status of a matter, represented the client despite the
likelihood that such representation would be adversely
affected by Mr. Robbins's representation of another
client, and represented the client where Mr. Robbins's
professional judgment might reasonably have been affected by
his interest in a business related to the underlying matter.
D.C. R. Prof. Conduct 1.4 (a), 1.7 (b)(2), 1.7 (b)(4). We
hold that the record supports the Board's conclusions and
accept the Board's recommendation.
Robbins was admitted to the District of Columbia Bar in May
2001 and has no record of professional discipline. At the
time of the alleged misconduct, he was a partner at a law
firm and responsible for one of the firm's clients,
Persaud Companies, Inc. (Persaud), a government contractor
and construction company founded and owned by its CEO Andy
Persaud. This case arose when Mr. Robbins invited his friend
and client, Gary Day, to serve as an indemnitor for
Persaud's surety bonds on future projects. The evidence
presented to the Hearing Committee was as follows.
Insurance Company had previously served as surety on
Persaud's government contracts, issuing payment and
performance bonds. In 2011, Persaud asked Hudson to furnish
bonds on future construction projects, but Persaud was unable
to produce certified audited financial statements. Hudson
thus agreed to remain as surety on future projects but on two
conditions. First, Hudson wanted Persaud to engage an escrow
agent to receive and disburse funds from the government
agencies with which it contracted. Hudson suggested
Chesapeake Escrow Services, which Mr. Robbins had formed with
his sister earlier that year. Chesapeake agreed and Mr.
Robbins formally disclosed his conflict of interest to gain
consent for his representation.
Hudson wanted Persaud to add a third indemnitor. In the past,
Persaud and Andy Persaud had served as indemnitors for
Hudson. Mr. Robbins knew Gary Day through the work Mr.
Robbins's firm had done for Mr. Day's family and the
work Mr. Robbins had done for Mr. Day, and Mr. Robbins and
Mr. Day had since become friends. Mr. Robbins approached Mr.
Day about this opportunity and explained that the requirement
of an additional indemnitor was the result of Andy
Persaud's need to rearrange funds, but assured Mr. Day
that Persaud and Andy Persaud had sufficient assets to
protect Mr. Day in the event that Hudson paid a claim and
sought indemnification. Mr. Day testified that he was not
aware of Mr. Robbins's interest in Chesapeake, whereas
Mr. Robbins testified that Mr. Day was aware because Mr. Day
had seen the escrow agreements.
to his testimony, Mr. Day understood that Mr. Robbins would
represent Mr. Day's interests in negotiating the terms of
the indemnification agreement. Specifically, Mr. Day expected
Mr. Robbins to ensure that the agreement included a provision
that if Persaud failed to perform on a contract and Hudson
had to pay out its bonds, Hudson would look to Persaud and
Andy Persaud before turning to Mr. Day. In addition, Mr. Day
requested a provision that would require his explicit
approval before he indemnified future contracts, as well as a
provision that both he and Mr. Robbins would be notified of
any future indemnifications. Mr. Robbins successfully
negotiated the second two terms with Hudson, but did not
obtain the provision in the agreement that would ensure that
Hudson looked to Persaud and Andy Persaud before turning to
Mr. Day. Mr. Day explained that, based on
reassurances from Mr. Robbins, he signed the indemnity
agreement without reading or understanding it, and did so
again with each revised copy Mr. Robbins sent him. Mr. Day
did not feel the need to read the documents carefully because
he trusted Mr. Robbins and "didn't know enough about
this stuff." Throughout this time, Mr. Day believed Mr.
Robbins was his lawyer, despite never receiving an invoice
for Mr. Robbins's services.
time, Mr. Robbins learned that Persaud may be having
financial problems. In February 2012 Chesapeake loaned
Persaud close to $1 million from its escrow account but did
not receive immediate repayment. Later that year, Persaud
fell behind on its performance on one of the contracts on
which Mr. Day was an indemnitor, became subject to a federal
criminal investigation, and stopped escrowing funds with
Chesapeake as required by its agreement with Hudson. Mr.
Robbins did not convey any of this information to Mr. Day. In
July 2012 a lawyer for Hudson named Richard Pledger sent Mr.
Day a demand letter because Persaud was failing to pay its
bills on certain projects, resulting in claims against the
surety bonds for $1, 215, 242. Mr. Day emailed Mr. Robbins
the letter. Mr. Robbins replied, "It's all good . .
. . I am working out with Hudson. You do not need to be
concerned," and Mr. Day wrote back, "Yeah, figured.
Thanks for the update." The two also spoke over the
the next few months, Mr. Robbins continued to communicate
with Richard Pledger about the claims against the surety
bonds. In September, Mr. Pledger sent Mr. Robbins a draft
complaint that named Mr. Day as one of the defendants, but
did not send the draft to any of the indemnitors. Mr. Robbins
informed Mr. Pledger that he had no objection to Mr. Pledger
contacting Andy Persaud directly, but as to Mr. Day, Mr.
Robbins told Mr. Pledger that he was going to communicate
with Mr. Day and keep him apprised. Days later, in an email
copied to Mr. Persaud but not Mr. Day, Mr. Robbins informed
Mr. Pledger that "[m]oving forward, to the extent Hudson
does in fact file suit against Persaud and Gary Day, please
be aware that I will no longer be engaged in the discussions
between Persaud and Hudson-because of a conflict of
interest." Mr. Pledger understood the conflict Mr.
Robbins mentioned to mean a conflict between Mr.
Robbins's two clients, Mr. Day and Andy Persaud, though
Mr. Robbins testified that he was referring to a conflict
relating to his interest in Chesapeake. Mr. ...