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In re Lattimer

Court of Appeals of The District of Columbia

January 16, 2020

In re Gregory L. Lattimer, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration Number 371926)

          Argued November 4, 2019

          On 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.

          Before Easterly and McLeese, Associate Judges, and Okun, Associate Judge of the Superior Court of the District of Columbia. [*]

          Per Curiam:

         In a 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.[1] 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.

         I. Standard of Review

         In a 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."[2] 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).

         II. Misconduct

         A. District of Columbia Rule 1.4(a)

         To 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.

         1. Roderick Strange

         The 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 appeal.[3]

         Regarding 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.[4] 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.[5]

         Mr. 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.[6]

         We 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.

         2. Toby Cooper

         The 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, [7] 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 retainer.

         Mr. 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.[8] 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.

         Mr. 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.[9]

         We 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.

         B. Virginia Rules 1.1 and 1.3(a)[10]

         Virginia 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.

         Whether 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.

         1. Failure to Investigate

         The 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.

         In September 2011, Ms. Wilkins hired Mr. Lattimer to file a lawsuit on her behalf and subsequently signed a retainer agreement.[11] 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.[12] The federal district court ultimately granted Ms. Montgomery's motion for summary judgment, [13] 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.

         Both 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.[14]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.

         In his 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.[15] 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."

         What is 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.[16] 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.[17] 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 circumstances.

         Moreover, 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.[18] 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.[19] 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.[20]

         This 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).[21] 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)).

         This 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.

         In sum, 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.

         2. Failure to Engage an Expert in a Timely Manner

         The 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.[22] 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, [23] 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. Id.

         Mr. 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.

         First, 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, [24] 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.[25]

         Thus, 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.

         C. Virginia Rule 8.4(c)

         Virginia 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).

         The 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.[26] 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."[27] In its opinion, the Fourth Circuit noted that Mr. Lattimer's ...

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