In re: Olekanma A. Ekekwe-Kauffman, Petitioner.
June 20, 2018
Member of the Bar of the District of Columbia Court of
Appeals (Bar Registration No. 479967)
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 client's lawful objectives; Rule
1.3(b)(2), intentionally prejudicing client's 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
Board's 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
Board's 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
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.
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.
Ekekwe-Kauffman began working on Ms. Manago's 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 UDC's
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-Kauffman's
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
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 court's
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.
Manago's 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 court's
dismissal order or this court's opinion until several
weeks after they were issued.
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.
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-Kauffman's invoices reflect that she
did no work on Ms. Manago's case after this court's
decision in November 2007, she continued accepting Ms.
Manago's 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. Manago's 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
The Disciplinary Process
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
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. Manago's 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-Kauffman's entire client file.
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
March 4, 2015, Disciplinary Counsel filed its Specification
The Hearing Testimony
Hearing Committee heard evidence from a number of witnesses,
including Ms. Ekekwe-Kauffman, over a period of six days.
After observing her demeanor, her changing explanations, and
the other testimony and evidence, the Hearing Committee
"reluctantly" concluded that Ms. Ekekwe-Kauffman
knowingly testified falsely on several occasions during the
hearing and created a falsified invoice to use in her own
the Hearing Committee found that Ms. Ekekwe-Kauffman
testified falsely about whether and when she communicated
with Ms. Manago regarding the substance of her case. Ms.
Ekekwe-Kauffman testified that she showed Ms. Manago several
drafts of the complaint before it was filed and that Ms.
Manago never objected to anything in the final version. The
Hearing Committee credited Ms. Manago's contrary
testimony and found that Ms. Ekekwe-Kauffman had just filed
the written summary Ms. Manago gave her, without editing or
consulting with her client. Ms. Ekekwe-Kauffman also claimed
she had met with Ms. Manago on two separate days, but
according to Ms. Manago, those meetings never occurred. The
Hearing Committee again credited Ms. Manago's testimony,
which was corroborated by other documentary evidence. For
example, although Ms. Ekekwe-Kauffman testified, based on the
June 2, 2008, invoice, that she had met with Ms. Manago for
thirty minutes on September 6, 2005, a letter she wrote to
Ms. Manago six days later contained an apology for not having
been available when Ms. Manago came into the
office. Similarly, Ms. Manago submitted medical
records to refute Ms. Ekekwe-Kauffman's testimony that
the two discussed the case for forty-five minutes on
September 23, 2005 (and that Ms. Manago had spent five hours
at her office that day)-the medical records supported Ms.
Manago's testimony that she had two medical procedures
scheduled that day and had only dropped into the office to
make a payment.
Hearing Committee also found that Ms. Ekekwe-Kauffman had
testified falsely about a discrepancy Disciplinary Counsel
pointed out in her December 13, 2005, invoice. Ms.
Ekekwe-Kauffman acknowledged that the invoice contained an
entry stating that on October 18, 2005, she made a copy of a
government motion for Ms. Manago, even though the government
had not filed its motion as of that date. She insisted,
however, that she had provided her client with a copy of the
motion on that date, despite also billing for time spent
copying the motion on November 17, 2005.
the Hearing Committee concluded that Ms. Ekekwe-Kauffman had
purposely falsified the June 2, 2008, invoice. Although she
explained that she created it after Ms. Manago filed her
disciplinary complaint in order to obtain payment for time
she had not previously billed,  the Hearing Committee found that
several of the newly added entries did not accurately
represent her time spent working on the case. For example,
the invoice contained a number of entries for meetings
lasting between thirty minutes and almost two hours, in
August, September, and October 2005 (including the meeting on
September 23, 2005, that the Hearing Committee found did not
occur), but Ms. Manago testified that she never met with Ms.
Ekekwe-Kauffman for more than fifteen minutes. The June 2,
2008, invoice also misrepresented the amount Ms. Manago had
paid in legal fees, in that it both failed to account for
many of the payments she made and, for the payments it did
reflect, showed that she had paid less than she actually did.
The Hearing Committee rejected Ms. Ekekwe-Kauffman's
claim that she had reviewed her file notes and docket entries
to reconstruct her activities for the June 2, 2008, invoice,
noting that the file she submitted to Disciplinary Counsel
around that same time included very few time records.
The Findings and Recommendation
light of its factual findings, the Hearing Committee
concluded that Ms. Ekekwe-Kauffman had violated the following
rules: 1.1(a), by failing to provide competent
representation; 1.1(b), by failing to serve her client with
skill and care commensurate with that generally afforded by
other lawyers; 1.3(a), by failing to represent Ms. Manago
with diligence and zeal; 1.3(b)(1), by failing to seek Ms.
Manago's lawful objectives; 1.3(b)(2), by intentionally
prejudicing Ms. Manago; 1.4(a) and 1.4(b), by failing to
communicate adequately with Ms. Manago about her case;
1.5(a), by charging Ms. Manago an unreasonable fee; 1.15(a)
and 1.15(e), by negligently misappropriating Ms. Manago's
funds and failing to hold her unearned advanced fees in
trust; 1.16(d), by failing to return unearned legal fees; and
8.4(c), by acting dishonestly and engaging in fraud and
misrepresentation.The Committee then concluded that the
appropriate sanction was disbarment.
Board on Professional Responsibility agreed with the Hearing
Committee's factual findings and conclusions of law with
respect to the rule violations. It disagreed, however, with
the Committee's conclusion that the misappropriation was
only negligent, finding that Ms. Ekekwe-Kauffman's
handling of Ms. Manago's funds was, "at a minimum,
reckless." The Board nevertheless adopted the remainder
of the Hearing Committee's analysis and recommended that
Ms. Ekekwe-Kauffman be disbarred.
we review the Board's conclusions of law de novo, In
re Saint-Louis, 147 A.3d 1135, 1147 (D.C. 2016),
"we must accept the Board's evidentiary findings if
they are supported by substantial evidence in the
record," In re Howes, 52 A.3d 1, 12 (D.C.
2012); see also D.C. Bar R. XI, § 9
(h)(1). Additionally, we defer to the discipline
recommended by the Board "unless to do so would foster a
tendency toward inconsistent dispositions for comparable
conduct or ...