IN RE: Olekanma A. EKEKWE-KAUFFMAN, Petitioner. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 479967)
June 20, 2018
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Report and Recommendation of the Board on Professional
Olekanma A. Ekekwe-Kauffman, pro se.
L. Porter, Senior Assistant Disciplinary Counsel, with whom
Hamilton P. Fox, III, Disciplinary Counsel, was on the brief,
Blackburne-Rigsby, Chief Judge, and Beckwith and Easterly,
Board on Professional Responsibility (the Board) recommends
that Olekanma Ekekwe-Kauffman be disbarred for violations of
the following Rules of Professional Conduct stemming from her
representation of a single client: Rule 1.1(a), failure to
provide competent representation; Rule 1.1(b), failure to
represent client with skill and care commensurate with that
generally afforded by other lawyers; Rule 1.3(a), failure to
represent client with diligence and zeal; Rule 1.3(b)(1),
failure to seek clients lawful objectives; Rule 1.3(b)(2),
intentionally prejudicing clients case; Rules 1.4(a) and
1.4(b), failure to communicate adequately with client; Rule
1.5(a), charging an unreasonable fee; Rules 1.15(a) and
1.15(e), reckless misappropriation of client funds and
failure to hold unearned advanced fees in trust; Rule
1.16(d), failure to return unearned legal fees; and Rule
8.4(c), engaging in conduct involving dishonesty, fraud, and
misrepresentation. Ms. Ekekwe-Kauffman challenges the Boards
Report and Recommendation as to each rule violation found, as
well as to the recommended sanction of disbarment. For the
reasons explained below, we accept the Boards findings
except as to Rule 1.15(a), reckless misappropriation of
client funds. Because we conclude the record does not support
a finding that Ms. Ekekwe-Kauffman misappropriated funds, we
decline to adopt the presumptive penalty of disbarment and
instead order a three-year suspension,
with reinstatement conditioned upon a showing of fitness.
Ekekwe-Kauffman was admitted to the District of Columbia Bar
in 2002 and has no record of professional discipline. After
working for a law firm for a brief period of time, she
established a solo practice in Washington, D.C., in 2003 or
2004. This case arose out of her representation of one
client, Fremah Manago, in a dispute with the University of
the District of Columbia (UDC), where Ms. Manago was a
student in the respiratory therapy program. The Hearing
Committee heard evidence on the alleged rule violations and
made the following factual findings.
A. The Representation
13, 2005, Ms. Manago retained Ms. Ekekwe-Kauffman to
represent her in her dispute with UDC. The form retainer
agreement they signed stated that Ms. Ekekwe-Kauffman would
represent Ms. Manago in "[e]ducational" matters in
the District of Columbia. The agreement set forth five
different fee arrangements, including options for a flat fee
of $ 5,000 or an hourly fee of $ 250 per hour, but it did not
specify which one the two had agreed upon for Ms. Managos
Ekekwe-Kauffman began working on Ms. Managos case on May 24,
2005. She initially focused her efforts on resolving the case
through negotiation and, after about five weeks, she obtained
a settlement offer from UDC. Though Ms. Ekekwe-Kauffman
advised Ms. Manago to accept UDCs settlement offer, Ms.
Manago chose to reject it and proceed with the litigation.
Ms. Ekekwe-Kauffman then asked Ms. Manago to write down
everything that had happened to her at UDC so that she could
prepare to file a lawsuit.
Ekekwe-Kauffman filed a complaint in Superior Court (Case No.
2005 008186 CAB) on October 12, 2005, naming the District of
Columbia, UDC, and three individual UDC employees as
defendants— Connie Webster, Janet Akintola, and Susan
Lockwood. The complaint contained much of what Ms. Manago had
written, without organization or editing for grammatical
errors, and, according to Ms. Ekekwe-Kauffmans
contemporaneous time records, was filed without any
independent factual investigation or legal research. Ms.
Ekekwe-Kauffman served only three out of the five defendants:
the District of Columbia and two of the UDC employees, Ms.
Webster and Ms. Lockwood.
January 25, 2006, Judge Maurice Ross dismissed the complaint
with prejudice as to the District and defendants Webster and
Lockwood. Ms. Ekekwe-Kauffman filed a motion for
reconsideration, and Judge Ross granted leave to amend the
complaint to cure the deficiencies the defendants had
identified: that the District was not a proper party to the
lawsuit because it did not have control over UDC or its
employees under D.C. Code § 38-1202.01(a) (2012 Repl.), and
that the complaint failed to state a claim upon which relief
could be granted against Ms. Webster and Ms.
Lockwood. Ms. Ekekwe-Kauffman then filed an
amended complaint that still contained several of the same
problems the original had. The amended complaint again named
the District of Columbia as a defendant, along with the same
individual defendants, the UDC Board of Trustees, and
then-Mayor Anthony Williams. The amended complaint also
failed to correct any of the substantive deficiencies
identified in the defendants
earlier motion to dismiss. As a result, Judge Ross granted
the defendants motion to dismiss the amended complaint with
prejudice as to the District of Columbia and defendants
Webster and Lockwood.
Ekekwe-Kauffman then appealed the decision to this court,
which affirmed the dismissal of the case with prejudice on
November 1, 2007. See Manago v. District of
Columbia, 934 A.2d 925 (D.C. 2007). When Ms.
Ekekwe-Kauffman notified Ms. Manago of the courts decision,
she advised her that she intended to file a new complaint
against the UDC Board of Trustees (which had been dismissed
from the case without prejudice for lack of proper
service) and directed Ms. Manago to continue making payments
while she worked on the case. Ms. Ekekwe-Kauffman never filed
a new complaint, and Ms. Manago discharged her as her
attorney in March 2008.
Hearing Committee found that, throughout the representation,
Ms. Ekekwe-Kauffman failed to communicate adequately with Ms.
Manago regarding the substance of the case. Ms.
Ekekwe-Kauffman filed both the complaint and the appellate
brief without showing them to Ms. Manago, despite Ms.
Managos request that she do so. Further, though Ms. Manago
made several inquiries about the status of her case, Ms.
Ekekwe-Kauffman did not send her the trial courts dismissal
order or this courts opinion until several weeks after they
B. The Payments
hearing, Ms. Ekekwe-Kauffman and Ms. Manago expressed
different understandings of the billing arrangement for the
representation. Ms. Ekekwe-Kauffman testified that they had
agreed to a $ 250 hourly fee, with no cap on the total amount
she could charge. Ms. Manago, on the other hand, understood
that the agreement provided for a flat fee of $ 5,000 and
that she would make periodic payments of $ 250 toward that
amount. Because the written agreement itself
was also ambiguous, the Hearing Committee was unable to
determine by clear and convincing evidence which billing
arrangement the two had agreed upon.
Nevertheless, consistent with her own understanding, Ms.
Manago made two $ 250 payments before Ms. Ekekwe-Kauffman
began work on her case— one on May 13, 2005, the date
of the agreement, and one on May 23, 2005— and
continued to make periodic payments until February 2008. In
August 2006, after the trial court had dismissed her case for
the second time, Ms. Manago discussed with Ms.
Ekekwe-Kauffman her belief that she had overpaid the flat fee
by about $ 3,000 ($ 8,000 in total). Ms. Manago understood
from this conversation that the excess $ 3,000 would be
placed in a trust account to be used toward her appeal and
that she would not make any more payments until January,
2007. She resumed making payments in January, 2007, and
ultimately paid Ms. Ekekwe-Kauffman a total of $ 10,800.
Although Ms. Ekekwe-Kauffmans invoices reflect that she did
no work on Ms. Managos case after this courts decision in
November 2007, she continued accepting Ms. Managos payments
until February 2008.
Hearing Committee found that regardless of which billing
agreement they had agreed upon, there were points at which
Ms. Ekekwe-Kauffman accepted more money from Ms. Manago than
she had earned. For example, if the retainer agreement called
for a $ 250 hourly fee, she did not earn the first $ 500 from
Ms. Manago— which she received in May 2005— until
June 15, 2005, when she had completed two hours of work on
the case. If the agreement was for a flat fee, on the other
hand, Ms. Ekekwe-Kauffman accepted payments in excess of $
5,000 before the trial court proceedings ended. The Hearing
Committee found, however, that Ms. Ekekwe-Kauffman never
deposited any of Ms. Managos payments into a trust account,
and that she deposited "at least some" of the
payments into her business operating account. Ms.
Ekekwe-Kauffman admitted as much, but she insisted that she
had earned every payment at the time it was made because Ms.
Manago was never ahead in her payments.
C. The Disciplinary Process
Sometime in March 2008, Ms. Manago asked Ms. Ekekwe-Kauffman
to refund a portion of her legal fees, but Ms.
Ekekwe-Kauffman did not do so. Ms. Manago subsequently filed
a disciplinary complaint alleging that Ms. Ekekwe-Kauffman
had provided inadequate legal services and had failed to
return her money as requested.
response to an inquiry from Disciplinary Counsel, Ms.
Ekekwe-Kauffman attached an invoice addressed to Ms. Manago,
dated June 2, 2008, which indicated that Ms. Ekekwe-Kauffman
had spent 102.83 hours working on Ms. Managos case and had
earned $ 25,924.99 in fees and expenses. The June 2, 2008,
invoice differed from previous invoices Ms. Ekekwe-Kauffman
had provided to Ms. Manago: it included additional time not
previously accounted for, and it did not reflect all of the
payments Ms. Manago had made. It also incorrectly indicated
that Ms. Manago had paid only $ 7,870, not $ 10,800. In
addition to the invoice, Ms. Ekekwe-Kauffman also submitted
two letters she claimed were sent to Ms. Manago regarding her
overdue account. Subsequently, in December 2008,
Disciplinary Counsel subpoenaed Ms. Ekekwe-Kauffmans entire
after filing her disciplinary complaint, Ms. Manago also
filed a claim with the Attorney-Client Arbitration Board
(ACAB) seeking a refund of the fees she had paid to Ms.
Ekekwe-Kauffman. Ms. Ekekwe-Kauffman relied on the June 2,
2008, invoice to support her position, which was that Ms.
Manago was not entitled to a refund because she still owed $
20,000 in legal fees. The ACAB rejected this argument and
awarded Ms. Manago a $ 9,000 refund. Instead of paying Ms.
Manago by the November 25, 2008, deadline, Ms.
Ekekwe-Kauffman unsuccessfully moved for reconsideration with
the ACAB and then filed an action in Superior Court seeking
to vacate the award, relying on the June 2, 2008, invoice in
support of her claim. Though the court affirmed the ACAB
award on January 5, 2009, Ms. Ekekwe-Kauffman did not make
any payments to
Ms. Manago until November 2013, and she did not finish paying
the full amount until April 2014.
March 4, 2015, Disciplinary Counsel filed its Specification
D. The ...