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In re Ekekwe-Kauffman

Court of Appeals of The District of Columbia

June 27, 2019

IN RE: Olekanma A. EKEKWE-KAUFFMAN, Petitioner. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 479967)

         Argued June 20, 2018

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          On Report and Recommendation of the Board on Professional Responsibility (BDN-228-08)

          Olekanma A. Ekekwe-Kauffman, pro se.

         Julia L. Porter, Senior Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, was on the brief, for appellee.

         Before Blackburne-Rigsby, Chief Judge, and Beckwith and Easterly, Associate Judges.

         OPINION

          Per Curiam:

          The 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,

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with reinstatement conditioned upon a showing of fitness.

          I. Background

          Ms. 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

          On May 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. Manago’s case.

          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.

          Ms. 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.

         On 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.[1] 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’

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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.[2]

         Ms. 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.

          The 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.

          B. The Payments

         At the 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.[3] 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-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.

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          The 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.[4] 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.[5]

          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.

         In 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.[6] Subsequently, in December 2008, Disciplinary Counsel subpoenaed Ms. Ekekwe-Kauffman’s entire client file.

         Shortly 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

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Ms. Manago until November 2013, and she did not finish paying the full amount until April 2014.[7]

          On March 4, 2015, Disciplinary Counsel filed its Specification of Charges.

          D. The ...


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