In re Baber, 13–BG–1491.

• Decision Date: 15 January 2015
• Docket Number: No. 13–BG–1491.,13–BG–1491.
• Citation: 106 A.3d 1072
• Parties: In re Gilbert BABER, Respondent. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 428285).
• Court: D.C. Court of Appeals

106 A.3d 1072

In re Gilbert BABER, Respondent.

A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 428285).

No. 13–BG–1491.

District of Columbia Court of Appeals.

Submitted Nov. 13, 2014.

Decided Jan. 15, 2015.

Wallace E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief for the Office of Bar Counsel.

Before THOMPSON and McLEESE, Associate Judges, and NEWMAN, Senior Judge.

Opinion

PER CURIAM:

The Board on Professional Responsibility has concluded that respondent Gilbert Baber violated numerous Rules of Professional Conduct during his representation of a client in a probate matter. The Board recommends that Mr. Baber be suspended from the practice of law for a period of three years and be required to prove fitness and to pay restitution as conditions of reinstatement. The Office of Bar Counsel contends that Mr. Baber's conduct constituted flagrant dishonesty requiring disbarment. We conclude that Mr. Baber should be disbarred.

I.

The Board's report and recommendation rests on the following findings, which are undisputed in this court.

In April 2007, Darlene Gripper retained Mr. Baber to represent her in the probate of her mother's estate. Ms. Gripper and Mr. Baber signed a retainer letter providing that Mr. Baber was to charge Ms. Gripper $125 per hour, plus expenses. On June 14, 2007, Mr. Baber filed a petition for unsupervised probate, naming Ms. Gripper as the personal representative of her mother's estate. On June 19, 2007, the probate court appointed Ms. Gripper as the personal representative of her mother's estate.

As personal representative, Ms. Gripper was required to give notice of the opening of the estate to her two brothers, as “interested persons,” within twenty days of her appointment, i.e., by July 9, 2007. Ms. Gripper's brothers did not receive notice until July 30, 2007, approximately three weeks after the required date. Ms. Gripper was also required to publish notice of the opening of the estate within three months of her appointment and to verify to the court that she had done so. On September 10, 2007, the probate court sent a notice to Mr. Baber and Ms. Gripper, reminding them that they needed to file a verification with the court by September 24, 2007. Despite receiving the reminder, Mr. Baber did not send the verification form to Ms. Gripper to sign until September 27, 2007. Ms. Gripper sent the signed forms back to Mr. Baber the next day, but Mr. Baber did not file them until October 2, 2007.

Additionally, as personal representative, Ms. Gripper was required to complete an inventory of the estate within three months of her June 19, 2007, appointment. Mr. Baber did not provide Ms. Gripper with the necessary forms until October 9, 2007, well after the deadline. He also erroneously advised Ms. Gripper on how to properly value the estate and refused to correct the valuation despite Ms. Gripper's request that he do so.

The probate court set a hearing for October 30, 2007, to determine whether it should remove Ms. Gripper as personal representative. At the hearing, Mr. Baber told the court that Ms. Gripper had missed deadlines because the estate had limited funds, which was not true. Mr. Baber billed Ms. Gripper for the time he spent preparing for and participating in the hearing, even though his neglect had led the probate court to schedule the hearing in the first place.

In July 2008, Mr. Baber learned that the estate's share of proceeds from the anticipated sale of property in Alabama was estimated at around $196,000. Mr. Baber subsequently wrote a letter to Ms. Gripper memorializing an oral modification of the terms of the retainer agreement, to provide that Mr. Baber would receive five percent of the estate's interest in the property if the property was sold. His explanation for the modification was that it was “too burdensome” for him to document the time he spent on work relating to the property. Despite this explanation, the modified agreement stated that, if the property was not sold, Mr. Baber would be paid hourly for his time. Although the property was not sold, Mr. Baber nevertheless demanded one-third of five percent of the estimated value of the property. Ms. Gripper refused to pay and requested an accounting of Mr. Baber's time on the matter so that she could pay him the agreed-upon hourly fees.

Rather than comply with Ms. Gripper's request, Mr. Baber sent a notice to Ms. Gripper informing her that he was withdrawing from the representation. In the notice, Mr. Baber stated that he was withdrawing because, among other things, (1) Ms. Gripper had failed to pay her monthly bills in a timely manner; (2) Ms. Gripper had failed to cooperate with Mr. Baber and to furnish information and documentation in a timely manner; and (3) Ms. Gripper had refused to comply with Mr. Baber's demand for one-third of the five-percent fee for the unsold property. Mr. Baber also accused Ms. Gripper of attempting to “perpetrate a fraud on the Court,” and he demanded that she pay him $10,360.48, representing one-third of the five-percent fee, the balance owed for work relating to the unsold property, and the balance owed for work in April. He threatened to sue Ms. Gripper for the total amount if she failed to pay $3,265.99 by April 15, 2009. In response, Ms. Gripper stated that she disagreed with Mr. Baber's assertions and requested a full accounting of services and all documents that Mr. Baber had received or sent to third parties in connection with the representation.

Mr. Baber subsequently filed a motion in the probate court, seeking to withdraw from the representation. The motion contained false accusations and misrepresentations similar to those he made in his earlier letter to Ms. Gripper. When Ms. Gripper renewed her request for her case file, Mr. Baber refused to turn it over or account for his time, stating that he did not document every hour he spent working on the unsold property. Mr. Baber thereafter sent Ms. Gripper a letter estimating that he spent thirty-three hours working on the property, but Ms. Gripper refused to pay Mr. Baber because he had only provided an estimate. The probate court ultimately granted Mr. Baber's motion to withdraw, without endorsing any of the allegations in the motion.

Mr. Baber's actions caused prejudice to Ms. Gripper. One of Ms. Gripper's brothers charged her with malfeasance in the administration of the estate, expressly relying on the allegations in Mr. Baber's motion to withdraw. Furthermore, because Mr. Baber withdrew, Ms. Gripper had to restart the probate process with a new attorney and post a $61,000 probate bond.

Mr. Baber also sued Ms. Gripper in Superior Court, accusing her of fraudulently using his legal services to “conceal and misrepresent [her mother's] assets” and to deny her brothers their lawful share of the estate's assets. After Ms. Gripper filed a pro se answer to the lawsuit, Mr. Baber filed a motion to dismiss the answer and a motion for judgment against Ms. Gripper, claiming that Ms. Gripper had fraudulently represented herself as a lawyer. In fact, Ms. Gripper had not represented herself as a lawyer. The court denied Mr. Baber's motions. Ultimately, Mr. Baber filed a consent motion to dismiss his lawsuit with prejudice, stating that “[t]he filing of this lawsuit against [Ms. Gripper] should not be construed as indicating anything negative about her character or honesty.” The trial court dismissed the lawsuit with prejudice. The court subsequently amended the dismissal order, to add language stating that the filing of the lawsuit “should not be construed as indicating anything negative about [Ms. Gripper's] character or honesty.”

Ms. Gripper filed a disciplinary complaint against Mr. Baber. In response, Mr. Baber stated that the complaint he had filed in Superior Court accurately stated his defense to Ms. Gripper's allegations.

After an evidentiary hearing, a Hearing Committee of the Board on Professional Responsibility concluded that Mr. Baber violated numerous Rules of Professional Conduct. Specifically, the Hearing Committee found that Mr. Baber had exhibited a lack of knowledge about probate law and practice and failed to competently represent Ms. Gripper, in violation of Rules 1.1(a) and (b); failed to act zealously and diligently and misused information he had obtained in representing Ms. Gripper to formulate baseless attacks against her, in violation of Rules 1.3(a) and (c); failed to keep Ms. Gripper reasonably informed, in violation of Rules 1.4(a) and (b); charged unreasonable fees, in violation of Rule 1.5(a); betrayed client confidences to Ms. Gripper's detriment, in violation of Rules 1.6(a)(1), (2), and (3); failed to timely return Ms. Gripper's file after the representation ended, in violation of Rule 1.16(d); knowingly made false statements to the court, in violation of Rules 3.3(a) and 8.4(c); and engaged in conduct that seriously interfered with the administration of justice, in violation of Rule 8.4(d). The Hearing Committee recommended that Mr. Baber be disbarred, because his conduct amounted to “flagrant dishonesty.” The Hearing Committee also recommended that Mr. Baber be required to pay restitution of $8,093.75 plus interest.

The Board agreed with the Hearing Committee's findings of fact and conclusions that Mr. Baber committed the foregoing violations of the Rules of Professional Conduct. The Board concluded, however, that Mr. Baber's conduct did not constitute flagrant dishonesty. In reaching that conclusion, the Board considered that Mr. Baber had no prior disciplinary record, that his misrepresentations were limited to Ms. Gripper's case, and that he withdrew his civil complaint and did not resist Ms. Gripper's request that the Superior Court clarify its dismissal order to protect her reputation. The Board recommended that Mr. Baber be suspended from the practice of law in the District of Columbia for...