In re Gregory L. Lattimer, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration Number 371926)
November 4, 2019
Report and Recommendation of the Board on Professional
Responsibility (Board Docket Numbers 11-BD-085 and 15-BD-070)
(BDN170-09, BDN319-09, BDN401-10, and BDN145-14)
Gregory L. Lattimer, pro se.
Hamilton P. Fox, III, Disciplinary Counsel, with whom
Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, was
on the brief, for the Office of Disciplinary Counsel.
Easterly and McLeese, Associate Judges, and Okun, Associate
Judge of the Superior Court of the District of Columbia.
report consolidating disciplinary cases heard by two Hearing
Committees, the Board on Professional Responsibility (the
"Board") concluded that respondent, Gregory L.
Lattimer, committed multiple violations of the District of
Columbia Rule of Professional Conduct 1.4(a) (communication
with client) in the course of representing two clients in the
District of Columbia, as well as violations of the Virginia
Rules of Professional Conduct 1.1 (competence), 1.3(a)
(diligence), and 8.4(c) (misconduct involving dishonesty,
fraud, deceit, or misrepresentation), in the course of
representing a third client in Virginia. The Board
recommended Mr. Lattimer be suspended for sixty days, with
the requirement that Mr. Lattimer pay restitution with
interest to the family of one of his clients and provide
proof of payment prior to reinstatement. We agree with the
Board's conclusions that Mr. Lattimer's conduct
violated the District of Columbia and Virginia Rules and
adopt the Board's recommendation as to sanction, except
that we additionally impose a fitness requirement.
Standard of Review
disciplinary case, Disciplinary Counsel must establish a rule
violation by clear and convincing evidence. In re
Tun, 195 A.3d 65, 72 (D.C. 2018). This court accepts the
factual findings of the Board "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). We review the Board's
conclusions of law de novo. In re Saint-Louis, 147
A.3d 1135, 1147 (D.C. 2016).
District of Columbia Rule 1.4(a)
comply with District of Columbia Rule 1.4(a), a lawyer must
"keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for
information." Comment two further provides that
"[a] client is entitled to whatever information the
client wishes about all aspects of the subject matter of the
representation unless the client expressly consents not to
have certain information passed on" and that "[t]he
lawyer must initiate and maintain the consultative and
decision-making process if the client does not do so and must
ensure that the ongoing process is thorough and
complete." Failing to return a client's calls or
respond to their questions violates this rule. See In re
Bernstein, 707 A.2d 371, 376 (D.C. 1998) (holding an
attorney's failure to return his client's telephone
calls and promptly answer other requests for information
violated Rule 1.4(a)); In re Dietz, 633 A.2d 850,
850 (D.C. 1993) (same). A failure to communicate with a
client when the client is incarcerated and thus has limited
access to the outside world is particularly concerning.
See, e.g., In re Askew, 96 A.3d 52, 59
(D.C. 2014) (per curiam); see also In re Fitzgerald,
982 A.2d 743, 751-52 (D.C. 2009). Mr. Lattimer was charged
with violating Rule 1.4(a) with respect to two clients,
Roderick Strange and Toby Cooper.
Hearing Committee, and the Board in turn, made the following
findings with respect to Mr. Lattimer's representation of
Roderick Strange: Mr. Strange's mother retained Mr.
Lattimer to represent her son in his criminal appeal in March
2008. Mr. Lattimer met with Mr. Strange just once in person,
at the D.C. Jail, in March. Thereafter, Mr. Strange was
transferred to a federal prison in South Carolina. While he
was in transit and after he arrived at his destination, Mr.
Strange made a number of collect calls to Mr. Lattimer's
office. None of his calls was accepted; meanwhile, Mr.
Lattimer did not call, write, or visit Mr. Strange. After six
months of no contact, Mr. Strange paid for a long distance
call to Mr. Lattimer's office in October 2008. A month
later, Mr. Lattimer sent Mr. Strange a letter informing him
that he had an "outstanding balance" that would
need to be paid if Mr. Strange still wanted him to file a
brief. That was their final communication. Mr. Lattimer never
entered an appearance in the case and never filed any
documents with the Court of Appeals, see D.C. App.
R. 42(a), so an attorney appointed by the court, Ian
Williams, ultimately litigated Mr. Strange's
the actual extent of his contact with Mr. Strange, Mr.
Lattimer vaguely asserts that "[t]he facts about
communication are at odds," and refers us to his
exceptions to the Hearing Committee Report, which he
"incorporate[s] as if fully set forth" in his
brief. In an appeal to this court, it is Mr. Lattimer's
obligation to set forth his argument in his brief, and it is
not enough for him to "perfunctor[ily]"
"advert" to issues he raised in a different forum
at an earlier stage of the litigation. Comford v. United
States, 947 A.2d 1181, 1188 (D.C. 2008) (internal
quotation marks omitted). In any event, we reiterate that in
disciplinary cases, factfinding and, in particular,
credibility determinations are delegated to the Hearing
Committee and, if it has taken additional evidence, to the
Board. See In re Asher, 772 A.2d 1161, 1172 (D.C.
2001). Our task is to confirm that these findings are
supported by substantial evidence. In re Howes, 52
A.3d at 12. The record submitted to the Hearing Committee in
this case provides the requisite foundation for the finding
Mr. Lattimer had no contact with Mr. Strange for more than
six months, despite Mr. Strange's numerous attempts to
contact Mr. Lattimer to learn the status of his
case. Mr. Lattimer's assertion that
"[t]here was no evidence in the record
indicating that information was sought and it was not
provided" is unsupported by the record.
Lattimer argues in the alternative that he had no legal
obligation under Rule 1.4(a) to keep Mr. Strange reasonably
informed or to comply with reasonable requests for
information because Mr. Strange's testimony established
that "he had no expectation of receiving information
from [Mr. Lattimer]." Mr. Lattimer asserts that Mr.
Strange testified that he made a "decision . . . in the
summer of 2008" and "considered Mr. Williams his
attorney and not [Mr. Lattimer]." But this puts words in
Mr. Strange's mouth that he did not say. Instead, Mr.
Strange explained that he reached out to Mr. Williams because
he and his family had been unable to make contact with Mr.
Lattimer and, beginning in late summer, Mr. Strange
"considered" Mr. Williams to be his lawyer because
"he was the one that was doing everything" in Mr.
Strange's case. Although Mr. Strange acknowledged he was
looking to Mr. Williams for assistance, he never testified
that he "decided" Mr. Lattimer, the attorney his
mother had retained for him in March, was not his
lawyer. To the contrary, the fact that Mr. Strange paid for a
long distance call to Mr. Lattimer from prison in October
2008 indicates that Mr. Strange was still looking to Mr.
Lattimer to provide him with information about his appeal up
until that time.
conclude that Mr. Lattimer's failure to communicate with
Mr. Strange for the six months after he was retained violated
District of Columbia Rule 1.4(a). See In re Askew,
96 A.3d at 59; In re Fitzgerald, 982 A.2d at 751-52.
Hearing Committee, and the Board in turn, made the following
findings regarding Mr. Lattimer's representation of Toby
Cooper: Ms. Cooper retained Mr. Lattimer on June 18, 2010, to
represent her in a federal civil rights lawsuit. Over the
next three months (until she terminated his representation),
Ms. Cooper had only limited contact with Mr. Lattimer, even
though he had led her to believe her case needed to move
quickly and even though she reached out to him in different
ways, repeatedly. During the month of July, Ms. Cooper sent
Mr. Lattimer two packages of case-related documents in the
mail,  and then, to get updates on her case,
emailed him four times and called him seven times. Mr.
Lattimer never called her back. He sent Ms. Cooper one email
in early July informing her he had not yet filed a complaint.
Later that month he sent Ms. Cooper two more emails-
apparently prompted by a concern that Ms. Cooper was
criticizing him to colleagues for being non-communicative-in
which he defended his approach to client contact. Ms. Cooper
again attempted to connect with Mr. Lattimer in August via
email and in September via phone, but without success. On
September 22, 2010, Ms. Cooper emailed Mr. Lattimer to
discharge him as her attorney and to request a refund of her
Lattimer disputes Ms. Cooper's narrative of her many
unsuccessful efforts to connect with him, again effectively
asking us to reassess the Hearing Committee's credibility
determinations. Even if we could, but see supra
page 6, we would decline to do so. The Hearing Committee
heard firsthand from Ms. Cooper, whose testimony was
corroborated by phone logs and printouts of the emails, which
were entered into the record and never challenged by Mr.
Lattimer. In short, there was ample, unimpeached evidence to
support the Hearing Committee's determination that Mr.
Lattimer failed to adequately communicate with Ms. Cooper.
Lattimer also argues that he had no obligation under the
Rules to contact Ms. Cooper when "he had no update on
her case for her," and that the Rules required him to
communicate with Ms. Cooper only when it was "necessary,
required, and warranted." We cannot agree. Ignoring or
electing not to respond to Ms. Cooper when she reached out to
learn the status of her case was not an option. Rather, to
keep Ms. Cooper "reasonably informed" per District
of Columbia Rule 1.4(a), Mr. Lattimer was obligated to
respond and explain the work he had done- or if no work had
been done, why this was the case.
conclude that Mr. Lattimer's minimal email contact and
failure to return any of Ms. Cooper's calls for three
months after he was retained violated District of Columbia
Rule 1.4(a). See In re Bernstein, 707 A.2d at 376;
In re Dietz, 633 A.2d at 850.
Virginia Rules 1.1 and 1.3(a)
Rule 1.1 requires lawyers to "provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness[, ] and preparation
reasonably necessary for the representation." Comment
five to the Rule elaborates that:
Competent handling of a particular matter includes inquiry
into and analysis of the factual and legal elements of the
problem, and use of methods and procedures meeting the
standards of competent practitioners. It also includes
adequate preparation. The required attention and preparation
are determined in part by what is at stake; major litigation
and complex transactions ordinarily require more elaborate
treatment than matters of lesser consequence.
an attorney has "fail[ed] to provide competent
representation is a matter decided on a case by case
basis." Weatherbee v. Va. State Bar, 689 S.E.2d
753, 757 (Va. 2010) (internal quotation marks omitted).
Relatedly, Virginia Rule 1.3(a) requires attorneys to
"act with reasonable diligence and promptness in
representing a client." See Virginia Rule 1.3
cmt. 3 (noting that "[a] client's interests often
can be adversely affected by the passage of time or the
change of conditions"). An attorney may violate either
Virginia Rule 1.1 or 1.3(a) by, for example, failing to
obtain the necessary documentation to support a motion and
failing to file the motion on time. See, e.g.,
Rice v. Va. State Bar, 592 S.E.2d 643, 644 (Va.
2004) (Virginia Rule 1.3(a)); cf. In re Nwadike, 905
A.2d 221, 224, 227, 233 (D.C. 2006) (agreeing with the
Board's conclusion that attorney violated District of
Columbia Rule 1.1(b), which obliges attorneys to "serve
a client with skill and care commensurate with that generally
afforded to clients by other lawyers in similar
matters," by failing to file a timely and complete
Super. Ct. Civ. R. 26(b)(4) statement because the submission
did not include the substance of the expert's expected
testimony). An attorney may violate both rules by, inter
alia, "suing the wrong defendants; failing to amend the
complaint to name the proper defendants after they became
known to him . . . [and] failing to request an extension of
time to produce an essential expert's report . . .
." In re Speights, 173 A.3d 96, 99 (D.C. 2017)
(per curiam). Mr. Lattimer was charged with violating Rule
1.1 and Rule 1.3(a) in connection with his representation of
Denise Wilkins, who sought to sue the individuals responsible
for the death of her son, Justin Lamar Davis, while he was a
patient at a state psychiatric hospital.
Failure to Investigate
Hearing Committee, and the Board in turn, made the following
findings regarding Mr. Lattimer's representation of Ms.
Wilkins: Ms. Wilkins's son, Mr. Davis, had been committed
to Virginia's Central State Hospital in January 2010.
While there, he was killed by another patient who was known
by staff to be violent and to have threatened Mr. Davis. Mr.
Davis and the other patient were housed on the same ward, in
unlocked rooms. An official report of the incident prepared
by the hospital determined that the failure of staff to
monitor the ward "provided the opportunity" for the
attack on Mr. Davis.
September 2011, Ms. Wilkins hired Mr. Lattimer to file a
lawsuit on her behalf and subsequently signed a retainer
agreement. Before Mr. Lattimer began work on the
case, Ms. Wilkins provided him with a copy of the hospital
report with all of the names of the hospital employees
redacted. Five months later, in late February 2012 (just
before the statute of limitations ran), Mr. Lattimer filed a
complaint raising, inter alia, claims of grossly negligent
supervision and deliberate indifference, in which he named as
one of the defendants the director of the hospital, Vicki
Montgomery. Mr. Lattimer sued Ms. Montgomery because he
erroneously believed that she was running the hospital at the
time of Mr. Davis's death, and he sought to hold her
liable in that capacity; in fact, at the time of Mr.
Davis's death, the director was Dr. Charles Davis.
Although Mr. Lattimer subsequently filed an amended
complaint, he again misidentified Ms. Montgomery as the
hospital director and again asserted her liability as
such. The federal district court ultimately
granted Ms. Montgomery's motion for summary judgment,
finding that she did not have any relevant supervisory
responsibilities at the hospital at the time of Mr.
Davis's death. The court also denied Mr. Lattimer's
beyond-the-eleventh-hour motion for leave to file a second
amended complaint to add Dr. Davis as a defendant because he
could not satisfy the requirements of Fed.R.Civ.P. 15(c) to
allow his amended complaint to relate back to his
timely-filed complaint. See infra note 21.
the Board and the Hearing Committee broadly critiqued Mr.
Lattimer's investigation of Ms. Wilkins's case, and
on this basis concluded he had violated Virginia Rules 1.1
and 1.3(a). As signaled by our above, abridged recitation of
the Board's and Hearing Committee's factual findings,
our focus is more tailored.For the purposes of this case,
we accept Mr. Lattimer's litigation theory and his
decision to sue a senior hospital official in federal court.
See Virginia Rule 1.3 cmt. 1 ("A lawyer has
professional discretion in determining the means by which a
matter should be pursued."). We further accept his
decision to seek to hold liable the director of the hospital
as that senior official. But having made that decision, it
was incumbent on Mr. Lattimer to do sufficient, timely
investigation to accurately identify who the director of the
hospital was at the time of Mr. Davis's death.
initial brief to this court, Mr. Lattimer does not directly
address the inadequacy of his investigation into the identity
of the director of the hospital at the time of Mr.
Davis's death, the fact that he erroneously sued Ms.
Montgomery, or his belated, unsuccessful attempt to sue the
actual director. But in the context of challenging a
suggestion that he could have discovered the director's
identity through pre-filing discovery, he asserts that no
discovery was needed because "all one had to do was read
the newspaper." He elaborates in a footnote that
"[a]nyone interested in [Mr. Davis's] murder would
surely try and educate himself/herself as much as possible.
Reading media accounts about the incident is the least that
one would do."
notable about this passage is that Mr. Lattimer nowhere
asserts that this is what the record reflects he did
in the four months between taking Ms. Wilkins's case and
filing her complaint. And for good reason. Mr. Lattimer's
file contained no evidence that he read contemporary news
reports or tried to "educate himself as much as
possible." His file contained no evidence of pre-filing
investigation at all, other than one press release announcing
Ms. Montgomery's promotion to hospital director, dated
October 22, 2010, six months after Mr. Wilkins's
death-which itself should have put Mr. Lattimer on notice
that more investigation into the identity of the director was
required. Mr. Lattimer testified before the
hearing committee that, before he filed Ms. Wilkins's
complaint in February 2012, he "got on the
internet" to "start reading everything that I can
about the hospital . . . [about] how it is set up in terms of
what they do." He further testified he looked at
"personnel" and "I see who does what. Who is
in charge of this; who is in charge of that." But not
only is there no record of this internet research in his
files, his testimony indicates that he was describing what
could be seen on the hospital's (presumably current in
2012) website, not newspaper articles from the time of Mr.
Davis's death in 2010. And then there is the fact that a
newspaper article from the time of Mr. Davis's death very
likely would have stated who the hospital director
was. Thus Mr. Lattimer's identification
of Ms. Montgomery as the hospital "director" in the
initial complaint he drafted is itself some proof that he did
not review contemporary news articles-i.e., he did not
conduct the very type of investigation that he acknowledged
to the Hearing Committee would be expected under the
whatever the extent of his investigation before he filed his
initial complaint, he was certainly obligated to do
additional investigation once Ms. Montgomery put him on
notice in her March 2012 motion to dismiss that she was not
the director of the hospital at the time of Mr. Davis's
murder. Yet, Mr. Lattimer filed an amended complaint in which
he continued to identify Ms. Montgomery as the hospital
director, again basing her liability on this purported role.
Ms. Montgomery reiterated her denial that she was the
hospital director in subsequent court filings, first in
another motion to dismiss filed in April 2012, and then in a
motion for summary judgment with an accompanying declaration
filed in May 2012. Even then, Mr. Lattimer continued to
assert that Ms. Montgomery was the hospital director, or at
least the acting hospital director, at the time of Mr.
Davis's death. He did not seek to amend his complaint
to sue the correct person under his theory of the case-Dr.
Davis, the actual director of the hospital at the time of Mr.
Davis's death-until December 2012.
delay doomed him under Fed.R.Civ.P. 15(c), which sets out the
criteria for allowing a plaintiff to add a new defendant in
an amended complaint and relate that amended complaint back
to a complaint filed before the expiration of the statute of
limitations. See Wilkins v. Montgomery, 751 F.3d
214, 224, 225 (4th Cir. 2014). It requires a showing, inter
alia, that the putative new defendant either knew or should
have known of the suit within a particular timeframe (at that
time, 120 days after filing). In this case, the federal
district court found that there was no reason Dr. Davis, who
retired from the hospital in 2010 and moved to a different
state, should have known of Ms. Wilkins's suit, filed in
2012. The Fourth Circuit affirmed, explaining that the
evidence established that "Dr. Davis was not made aware
until December 28, 2012, when he received an email from
Appellee's office." Wilkins, 751 F.3d at
225 (citing Dr. Davis's declaration and deposition and
noting that representations to the contrary were based on
unfounded assertions that (1) Dr. Davis and Ms. Montgomery
were both represented by the Office of the Attorney General
(Dr. Davis was represented by private counsel) and (2) that
Dr. Davis "still has an office and practices medicine at
[Central State Hospital]" (Dr. Davis's unimpeached
testimony at his deposition was that he was retired)).
outcome was avoidable. Had Mr. Lattimer timely identified Dr.
Davis as the hospital director and diligently sought leave to
amend his initial complaint to add him as a defendant, he
could have ensured Dr. Davis had actual notice of Ms.
Wilkins's suit within the requisite 120-day timeframe. As
detailed above, Ms. Montgomery told Mr. Lattimer just a month
after he filed Ms. Wilkins's complaint that she was not
the director of the hospital at the time of Mr. Davis's
death and was not the person he wanted to sue. Instead of
taking corrective action, however, Mr. Lattimer chose to
dispute a fact that he himself concedes could have been
verified by a review of contemporaneous news articles. By the
time he tried to correct course and to amend his complaint to
sue Dr. Davis, it was too late.
Mr. Lattimer aimed to sue the director of the hospital at the
time of Mr. Davis's death, but he identified the wrong
individual as serving in that role and then failed to timely
correct his mistake. To comply with Virginia Rules 1.1 and
1.3, Mr. Lattimer was not necessarily required to identify
the correct party before filing the lawsuit, see
Weatherbee, 689 S.E.2d at 755-57 (concluding the
attorney's lawsuit was frivolous in violation of Virginia
Rule 3.1, rather than incompetent in violation of Virginia
Rule 1.1, when he sued the wrong doctor in a medical
malpractice case), nor was he required to conduct an
investigation to determine who the actual director was in any
particular way. However, the Virginia Rules did require Mr.
Lattimer to make reasonable efforts to investigate who in
fact the appropriate parties were under his own theory of the
case and to diligently seek to add those parties. Cf. In
re Speights, 173 A.3d at 99. This he failed to do.
Failure to Engage an Expert in a Timely Manner
Board and the Hearing Committee also found that Mr. Lattimer
failed to engage an expert in a timely manner. The district
court's initial scheduling order required Mr. Lattimer to
make expert disclosures pursuant to Fed.R.Civ.P. 26 by
October 22, 2012. After he learned on or about October 23,
2012, that an expert engaged by Ms. Wilkins's prior
counsel could not assist him, Mr. Lattimer sought and
received an extension to file by November 21, 2012. On that
date, Mr. Lattimer filed with the court a "Certificate
Regarding Discovery" in which he represented to the
court that a copy of his Fed.R.Civ.P. 26 expert disclosures
"were served" on opposing counsel. In fact, he did
not serve any report on November 21, and did not serve his
expert's one-page "preliminary report" (which
was dated November 26, 2012) until two weeks later.
Presumably because this preliminary report did not comply
with Fed.R.Civ.P. 26,  Mr. Lattimer served a full report on
December 21, 2012. As the Fourth Circuit later noted, this
was one month "after the agreed-upon expert disclosure
date, after discovery was closed, after Appellee filed a
motion for summary judgment, and on the very date set by the
court for the filing of motions to exclude experts."
Wilkins, 751 F.3d at 223. Because Mr. Lattimer
failed to make proper expert disclosures in a timely manner,
the federal district court excluded his expert and granted
summary judgment, rulings which the Fourth Circuit affirmed.
Lattimer challenges the Board's determination that he
failed to engage an expert in a timely manner as having
"no basis in fact, law[, ] or logic." He argues
that he "engaged two (2) experts in a timely
manner," and that "the problem" was "the
facts of the case" and his consequent difficulty in
"getting an expert to say what was needed and/or
desired." There are a number of flaws in this argument.
according to Mr. Lattimer's own testimony, he did not
hire the first expert; that expert was hired by prior
counsel. Second, for reasons he never explained, he only
learned that this expert could not assist him the day after
the initial filing deadline for expert disclosures. Third, he
ultimately did find an expert to write a more
detailed report that presumably said "what was needed
and/or desired," given his repeated argument to the
federal courts that the exclusion of this late-filed report
was "catastrophic" to his case. Fourth, the fact
that this second expert (1) initially provided a facially
inadequate one-page (really one-sentence, see supra
note 23) "Preliminary Report" that post-dated the
new November 21, 2012 deadline for expert disclosures,
and (2) provided a full report a month after the missed
November 21, 2012 deadline is evidence that Mr. Lattimer
engaged this expert too late.
we conclude that the Hearing Committee's and Board's
finding that Mr. Lattimer failed to timely engage an expert
is supported by substantial evidence. And we further conclude
that this failure violated Virginia Rules 1.1 and 1.3(a).
See Rice, 592 S.E.2d at 644 (failure to take timely
action to permit client's motion for a sentence reduction
to be heard constituted a violation of Virginia Rule 1.3(a));
cf. In re Speights, 173 A.3d at 99; In re
Nwadike, 905 A.2d at 227.
Virginia Rule 8.4(c)
Rule 8.4(c) states "[i]t is professional misconduct for
a lawyer to: engage in conduct involving dishonesty, fraud,
deceit[, ] or misrepresentation which reflects adversely on
the lawyer's fitness to practice law." The Board and
the Hearing Committee concluded that Mr. Lattimer violated
this rule when he made certain "unqualified"
representations to the Fourth Circuit about Dr. Davis in an
effort show that his rejected second amended complaint could
fulfill the relation-back requirements of Fed.R.Civ.P. 15(c).
Board and the Hearing Committee made the following relevant
findings of fact: After Mr. Lattimer moved to file a second
amended complaint in the Wilkins case naming Dr. Davis as a
defendant, the district court allowed Mr. Lattimer to depose
Dr. Davis to determine whether he would have had notice of
the suit within the requisite timeframe under Fed.R.Civ.P.
15(c). At this deposition, Mr. Lattimer asked Dr. Davis if he
still had a relationship with Central State Hospital in 2012;
Dr. Davis testified that he had not had an office in the
hospital after May 2010 and had no subsequent affiliation
with the hospital.
Notwithstanding receiving Dr. Davis's responses to his
deposition questions, Mr. Lattimer represented for the first
time in his brief to the Fourth Circuit that Dr. Davis
"still has an office and practices medicine at the
hospital." In its
opinion, the Fourth Circuit noted that Mr. Lattimer's