In re Bailey

• Decision Date: 13 October 2022
• Docket Number: 21-BG-476
• Citation: 283 A.3d 1199
• Parties: IN RE Samuel BAILEY, Jr., Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 384974)
• Court: D.C. Court of Appeals

283 A.3d 1199

IN RE Samuel BAILEY, Jr., Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 384974)

No. 21-BG-476

District of Columbia Court of Appeals.

Submitted April 14, 2022

Decided October 13, 2022

Myles V. Lynk, Senior Assistant Disciplinary Counsel, and Hamilton P. Fox, III, Disciplinary Counsel, were on the brief for petitioner.

Johnny M. Howard, Washington, was on the brief for respondent.

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

Deahl, Associate Judge:

The Board on Professional Responsibility recommends that we suspend respondent Samuel Bailey, Jr., from the practice of law for one year, based on ethical violations stemming from his representation of Allen Laster. Specifically, the Board found that Bailey violated Rules 1.4(a), 1.4(b), 1.5(a), 1.5(e), and 8.4(c) of the District of Columbia Rules of Professional Conduct. Bailey takes exception to each purported violation. Disciplinary Counsel, on the other hand, takes exception to the Board's rejection of the Ad Hoc Hearing Committee's findings that Bailey also violated Rules 1.1(a), 1.1(b), and 8.4(d), and to the Board's conclusion that Bailey should not be obligated to prove his fitness to practice law before being reinstated.

We agree with the Board that the evidence established that Bailey violated Rules 1.4(a), 1.4(b), 1.5(a), 1.5(e), and 8.4(c), but did not sufficiently establish that he violated Rules 1.1(a) and 1.1(b). As for Rule 8.4(d), we disagree with the Board and agree with the Hearing Committee that the evidence established that Bailey violated that rule, leading us to depart from the Board's recommended sanction and impose a fitness requirement upon any application for reinstatement. We suspend Bailey for one year, with reinstatement conditioned on proof of his fitness to resume legal practice.

I.

Allen Laster filed a pro se suit against his Local Union 491, the Labor Management Training Committee, the Mid-Atlantic Council of Carpenters, and the Carpenters Local 491 Annuity Fund, in the United States District Court for the District of Columbia. He alleged that those defendants had engaged in employment discrimination against him. The defendants filed a motion to dismiss, and Laster approached Bailey in search of representation. Laster and Bailey discussed the lawsuit and a related complaint that Laster had lodged with the District of Columbia Office of Human Rights ("OHR"). Because Bailey did not have the expertise to handle Laster's case, Bailey explained that he could enlist Clifford Stewart, a New Jersey attorney with relevant experience, with Bailey serving as local co-counsel. A few days later, Bailey contacted Stewart, and the two of them began working on the case by September 11, 2013.

It was not until three months later, in December 2013, that Bailey sent Laster a representation agreement, setting forth the scope of work that he and Stewart would perform, along with their attendant fees. Laster testified that he did not understand the agreement, but signed it after Bailey assured him that he would explain the agreement's terms at a later meeting. That discussion never took place.

The agreement that Bailey sent Laster: (1) pertained only to the federal litigation, and made no mention of the OHR proceeding; (2) failed to mention the Annuity Fund defendant; and (3) purported to be a "partial contingent fee contract," but was cryptic in the particulars of how that fee would be calculated. While the agreement explained that counsel would take 40% of Laster's recovery "after deduction of costs" as compensation, it also referenced a $30,000 initial fee, purportedly for anticipated "costs and expenses," owed in 30 monthly $1,000 installments. The agreement mentioned at least three different hourly rates that Bailey charges, but explained that "[t]he above costs and expenses are not hourly fees but are a reflection of fees in that they represent Counsel's discounted hourly rate of $400.00 per hour." In addition to this murkiness, the agreement contained contradictory information as to when payments would be due and considered late. Even though the agreement made clear that Stewart would be involved in the litigation of the case, it did not delineate the division of responsibility between the two attorneys, but instead ambiguously reassured Laster that "[i]f associated counsel is retained no additional costs will be required of Client." The agreement also contained a provision stating that if Bailey were "discharge[d] ... for any reason other than just cause," Bailey would be entitled to "an amount equal to the greater of: (1) the above agreed percentage or [sic] gross recovery or $500 per hour for services performed to date of discharge."

Over the course of the representation, Laster paid Bailey at least $12,300. Nonetheless, Bailey failed to provide Laster with receipts for his payments, even upon request. When Laster eventually fired Bailey, Bailey produced an invoice, charging Laster $85,270 for 221.75 hours of work. According to Disciplinary Counsel's forensic account expert, Kevin O'Connell, that sum included charges for work performed after Laster fired Bailey (in violation of the fee agreement), double billing for meetings where both attorneys were in attendance (at fluctuating rates), and numerous errors and over-charges. O'Connell opined that, in total, Bailey and Stewart overcharged Laster by $23,518.17. At least $12,618.17 of these overcharges were attributable to Bailey and $10,900 to Stewart. Laster disputed the invoice with the District of Columbia Attorney/Client Arbitration Board, which concluded that on balance, Laster owed Bailey $16,500 (approximately $55,500 less than Bailey asserted was still outstanding).

With regard to the representation itself, Bailey entered his appearance in federal court on Laster's behalf in December 2013 and, shortly thereafter, filed a third amended complaint on his behalf. The third amended complaint contained several errors and Mark Hanna, Disciplinary Counsel's expert witness on the standard of care, opined that the quality of the filing suggested counsel neither properly grasped Laster's case nor provided sufficient analysis. According to Hanna, the work "was more similar to that of a pro se plaintiff than a represented client." The Hearing Committee conducted an independent review of the materials submitted and agreed.

The third amended complaint also did not include the Carpenters Local No. 491 Annuity Fund as a named defendant, even though Laster had included it in his initial pro se complaints. After Bailey failed to respond to a motion to dismiss from the Annuity Fund, the action against it was dismissed as conceded.

The three remaining defendants filed a motion to dismiss in July 2014. Bailey did not file an opposition on behalf of Laster until three days after it was due, and failed to file a motion for an extension of time. That opposition contained some fairly basic errors, including an underscore where a date needed to be added, but never was.

Following a mediation session, Bailey and Stewart encouraged Laster to accept a $50,000 or $60,000 settlement offer, which Laster rejected. Several months later, Laster fired Bailey, and Bailey withdrew from the case. The court then appointed pro bono counsel to represent Laster in another mediation attempt, which was ultimately successful, and yielded a sum significantly higher than the settlement Bailey and Stewart had recommended he accept.

Although not included in the fee agreement, Bailey agreed to file a request for reconsideration on the claim that Laster had filed pro se with OHR. Stewart performed the substantive work, and Bailey transmitted the reconsideration request in April 2014. Bailey inquired about the status of the matter with OHR once, and was told the request for reconsideration was still under review, but there is no evidence that Bailey ever contacted OHR about the matter again. Laster attempted to contact Bailey on multiple occasions about the outcome in the OHR proceeding, but felt his communications were not responded to "in a responsible way," so he sought and retained another attorney to handle his OHR claim.

Laster filed a disciplinary complaint in May 2015, and Disciplinary Counsel subsequently subpoenaed Bailey's client files and "all documents relating to Allen Laster." Bailey retained counsel, who responded to the subpoena with a flash drive containing assorted documents. After reviewing the submission, Disciplinary Counsel sent a follow-up letter two years later highlighting particular omissions from the materials and asking that Bailey either provide them or point Disciplinary Counsel to records that it may have overlooked. Neither he nor his counsel provided the additional documents until he filed his pre-hearing exhibit submissions years later, in February 2019, and he again filed more previously undisclosed exhibits on the last day of the hearing. At the hearing, Bailey offered conflicting testimony on whether he was aware that he had been subpoenaed regarding his representation of Laster, and maintained he had never seen the subpoena, nor was he aware of its scope. He acknowledged, however, seeing Disciplinary Counsel's follow-up letter indicating that it was still seeking documents that were not provided in his counsel's initial disclosures.

Disciplinary Counsel charged Bailey with violations of Rules 1.1(a), 1.1(b), 1.4(a), 1.4(b), 1.5(a), 1.5(e), 8.4(c), and 8.4(d). The Ad Hoc Hearing Committee found that Disciplinary Counsel supported all of those charges by clear and convincing evidence. The Board on Professional Responsibility, however, disagreed with regard to Rules 1.1(a), 1.1(b), and 8.4(d), though it agreed with the Hearing Committee that Bailey committed the other five Rule violations. The Board ultimately recommended that Bailey be suspended from the practice of law in the District of Columbia for one year.

II.

In...