In re Bradley, 12–BG–1205.

• Decision Date: 11 July 2013
• Docket Number: No. 12–BG–1205.,12–BG–1205.
• Citation: 70 A.3d 1189
• Parties: In re Stephanie Y. BRADLEY, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 288910).
• Court: D.C. Court of Appeals

70 A.3d 1189

In re Stephanie Y. BRADLEY, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 288910).

No. 12–BG–1205.

District of Columbia Court of Appeals.

Argued March 21, 2013.

Decided July 11, 2013.

Melvin G. Bergman, Greenbelt, MD, for respondent.

Traci M. Tait, Assistant Bar Counsel, with whom Wallace E. Shipp Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and SCHWELB, Senior Judge.

PER CURIAM:

This disciplinary case is before us on exceptions filed by respondent, Stephanie Y. Bradley, to the Report and Recommendation of the Board on Professional Responsibility (the “Board”). The Board found that respondent committed one violation of Rule 1.1(a) (incompetence), one violation of Rule 1.1(b) (failure to employ requisite skill and care commensurate with practitioners in similar matters), one violation of Rule 1.3(a) (lack of diligence and zeal), one violation of Rule 1.3(b)(1) (intentional failure to seek clients' lawful objectives), one violation of Rule 1.3(c) (failure to act with reasonable promptness), and one violation of Rule 8.4(d) (serious interference with administration of justice) in her role as court-appointed guardian for Calvin Beard between 1994 and 2004 and Mary E. Brooks between 1999 and 2003. The Board also found that respondent intentionally testified falsely at her disciplinary hearing before the Hearing Committee. The Board recommends sanctioning respondent with a two-year suspension followed by a requirement that she show her fitness to resume the practice of law. Respondent takes exception to the Board's finding that she was deliberately dishonest in her testimony before the Hearing Committee and the Board's enhanced sanction based on that finding. For the reasons stated below, we adopt the Board's findings and recommended sanction and order a two-year suspension, with reinstatement conditioned upon a showing of fitness.

I. FACTS

A. Calvin Beard

In September 1994, respondent was appointed by the Superior Court of the District of Columbia to serve as the guardian for Calvin Beard, a man with developmental disabilities who was also the victim of a severe head trauma that left him hospitalized for several months. Once Mr. Beard's condition stabilized, respondent arranged for his transfer on December 2, 1994 to Cuppett & Weeks, a nursing home located three to four hours from the District of Columbia in Oakland, Maryland. After his transfer, respondent almost completely abandoned Mr. Beard in the nursing home for the next ten years, visiting him only twice within an eight-year period, participating in none of the quarterly care plan meetings with the nursing home staff from 1995 until Mr. Beard was discharged nine years later, and filing only three of the required semi-annual reports to the Superior Court, two at the beginning of the period and one eight years later.¹

At the time of his injury, Mr. Beard was homeless and his family, who lived in Louisiana and Texas, did not know where he was. Respondent did not respond to repeated phone calls and letters from Mr. Beard's family, who independently located Mr. Beard in 1997, and ignored requests by the family to have him transferred to a nursing home facility near the family in Louisiana, as well as a direct transfer request from that nursing home. Mr. Beard's family testified that Mr. Beard wanted to move closer to them and had asked them to “get him out of there.” In 2004, Mr. Beard's family retained counsel to have respondent removed as Mr. Beard's guardian and succeeded in transferring Mr. Beard to a halfway house in Texas near his brother. On July 13, 2004, Mr. Beard's brother filed a complaint against respondent with the Office of Bar Counsel.

B. Mary E. Brooks

In January 1999, respondent was appointed guardian and conservator by the Superior Court of the District of Columbia for Mary E. Brooks, an elderly and infirm woman who had between $200,000 and $250,000 embezzled from one of her bank accounts by a purported family friend and caretaker, Ronnie Hall. Once appointed, respondent failed to prevent Mr. Hall from continuing to embezzle money from Ms. Brooks; failed to marshal, recover, and safeguard Ms. Brooks's assets; failed to file for benefits due Ms. Brooks under a life insurance policy and a civil service lump sum benefit; and failed to file Ms. Brooks's tax returns for the five years that respondent represented Ms. Brooks, resulting in unnecessary attachments and penalties. In 2003, Ms. Brooks's niece had her attorney, Steven Weinberg, petition to have respondent removed as personal representative of Ms. Brooks's estate and he was appointed in her stead. Mr. Weinberg sued respondent for the hundreds of thousands of dollars of losses sustained by Ms. Brooks and her estate during respondent's tenure, eventually recovering over $400,000. On May 24, 2004, after attempting on several occasions to obtain information from respondent without success, Mr. Weinberg filed a complaint against respondent with the Office of Bar Counsel on behalf of his client and as the successor guardian and conservator to Ms. Brooks and her estate.

C. Testimony before the Hearing Committee

On July 29, 2010, the Office of Bar Counsel filed charges against respondent in response to the complaints against Mr. Beard and Ms. Brooks. At her hearing on March 1–3, 2011, respondent testified before the Hearing Committee that she “often” spoke with Mr. Beard by telephone and attended most of his quarterly care plan meetings by telephone. Respondent also testified that she visited Mr. Beard “usually, three times a year” on her way to her parents' vacation home in Massanutten, Virginia. Respondent's testimony was contradicted, however, by the nursing home staff who testified that respondent did not participate in any of the meetings for nine years, beginning in 1995. Mr. Beard's social worker could not recall a single time when respondent called or visited Mr. Beard in the eight years the social worker worked with him. There was also no evidence presented supporting such contacts with Mr. Beard or his caregivers; respondent never submitted petitions for compensation for legal services or reimbursement costs associated with these purported visits or long-distance telephone calls. Moreover, to reach the nursing home, appellant would have had to drive 130 miles out of the way on her route to her parents' vacation home.

Nevertheless, the Hearing Committee found that respondent “seemed honest” when she testified and found that there was nothing in her demeanor to suggest that her testimony was intentionally false, noting that she was trying to remember events from seven to fifteen years in the past. The Hearing Committee still concluded, however, that respondent's testimony about regularly checking on Mr. Beard's care was incredible and found respondent to have acted negligently and incompetently as guardian to Mr. Beard and Ms. Brooks. The Hearing Committee recommended that respondent receive a ninety-day suspension as a sanction.

The Board adopted most of the Hearing Committee's findings and conclusions, but concluded that the Hearing Committee's finding that respondent's false testimony was not intentional was “inconsistent with the substantial record evidence.” The Board concluded that respondent intentionally lied to the Hearing Committee and that her false testimony before the Committee constituted a significant aggravating factor warranting a two-year suspension, with reinstatement conditioned upon a showing of her fitness to resume the practice of law. In recommending a two-year suspension, the Board also relied upon the fact that respondent had been informally admonished by Bar Counsel on three prior occasions, twice for incompetently and non-diligently handling probate matters for two separate clients during the same time period she was serving as a guardian for Mr. Beard and Ms. Brooks, and again several years later, after the present case began, for failing to provide a sufficient writing clearly setting forth the basis of her legal fee.

II. FINDING OF INTENTIONAL FALSE TESTIMONY

Before this court, respondent admits that she testified falsely before the Hearing Committee about certain events involving Mr. Beard, but denies that she did so intentionally, arguing that any false statement contained in her testimony was inadvertent and due to the difficulty of “reconstructing a distant memory.” Because the Hearing Committee found her testimony to be seemingly honest and sincere, respondent argues that the Board's ultimate finding, that she intentionally misrepresented facts to the Hearing Committee, was overreaching. Respondent contends that the Board improperly extrapolated only certain facts from the evidence in this case to support its findings that respondent intentionally testified falsely while ignoring the fact that the rest of her testimony was considered credible. Respondent further argues that, in its ultimate finding that she intentionally testified falsely, the Board ignored important factors taken into account by the Hearing Committee, namely her credibility, demeanor, candor, sincerity, and truthfulness in her overall testimony.

When examining a Report and Recommendation from the Board on Professional Responsibility, “[t]he scope of our review ... is limited.” In re Bailey, 883 A.2d 106, 115 (D.C.2005) (internal citation and quotation marks omitted). We “shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record.” D.C. Bar R. XI, § 9(h)(1). “[T]he Board has the power to make its own factual findings and forward them to the court [of appeals] with a recommendation,” In re Temple, 629 A.2d 1203, 1208 (D.C.1993), however, “the Board must accept the Hearing Committee's evidentiary findings, including...