In re Ekekwe-Kauffman

          Argued June 20, 2018

          A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 479967)

         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.

          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, 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' 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.

         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 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 Hearing Testimony

         The 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 defense.

         First, 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.^[8] 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.

         The 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.

         Finally, 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, ^[9] 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.

         E. The Findings and Recommendation

         In 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.^[10]The Committee then concluded that the appropriate sanction was disbarment.

         The 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.

         II. Analysis

         Though 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).^[11] 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 ...