In re Cater

• Decision Date: 23 November 2005
• Docket Number: No. 03-BG-624.,03-BG-624.
• Citation: 887 A.2d 1
• Parties: In re Rozan E. CATER, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

Page 1

887 A.2d 1

In re Rozan E. CATER, Respondent A Member of the Bar of the District of Columbia Court of Appeals.

No. 03-BG-624.

District of Columbia Court of Appeals.

Argued June 17, 2004.

Decided November 23, 2005.

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Rozan E. Cater, pro se.

H. Clay Smith, III, Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel at the time the brief was filed, was on the brief, for the Office of Bar Counsel.

H. Bradford Glassman, Washington, DC, with whom Elizabeth J. Branda, Executive Attorney, was on the brief, for the Board on Professional Responsibility.

Before TERRY, REID and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge:

Rozan E. Cater, an attorney who was admitted to the Bar of this Court in 1989, is the respondent in four consolidated disciplinary matters coming to us with a report and recommendation from the Board on Professional Responsibility.¹ In the first matter, a closely divided Board would absolve respondent of ethical misconduct in connection with her former secretary's embezzlement of over $47,000 from the estates of two incapacitated adults for whom respondent was the court-appointed guardian and conservator. In the other three matters, the Board has found misconduct in respondent's repeated failures to cooperate with disciplinary investigations by Bar Counsel into ethical complaints against her. The Board accordingly recommends that respondent be suspended from practicing law for ninety days, with reinstatement conditioned on her compliance with Bar Counsel's investigative inquiries and on proof by respondent of her fitness to resume legal practice. Both Bar Counsel and respondent have objected to the Board's report.

With respect to the first matter, we disagree with the Board. We conclude that respondent violated two Rules of Professional Conduct: Rule 5.3(b), which required her to make "reasonable efforts" to ensure that the conduct of her nonlawyer employee was compatible with her own professional obligations as a lawyer, and Rule 1.1(a), which required her to provide competent representation to her wards and their estates. As to the three other matters, we agree that respondent violated Rules 8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority) and 8.4(d) (serious interference with the administration of justice), and D.C. Bar Rule XI, § 2(b)(3) (failure to comply with an order of the Board).

We suspend respondent for 180 days, attaching appropriate conditions to her reinstatement. One of those conditions is that respondent will have to prove that she is rehabilitated and fit to resume the practice of law. In the process, we grant the Board's request for clarification of the legal standard to be followed in deciding whether the so-called fitness requirement is warranted. Resolving a disagreement between the Board and Bar Counsel, we approve the "clear standard" proposed by the Board: to justify requiring a suspended attorney to prove fitness as a condition of reinstatement, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law.

I. FACTS

The Board majority adopted the Hearing Committees' findings of fact in the four matters now before us in toto. In all material respects, the findings are unobjectionable, and for the most part they are undisputed. With respect to Bar Docket No. ("BDN") 337-99, however, we agree with Bar Counsel that the Hearing Committee made certain findings in this matter — we shall note them infra — that are "unsupported by substantial evidence of record." D.C. Bar R. XI, § 9(g)(1). Our analysis might not be materially different were we to accept these findings, but the point is one worth highlighting for future consideration by Hearing Committees and the Board. The findings in question relate to subjects that were within respondent's exclusive personal knowledge, such as her mental state and the arrangements in her law office, yet the Hearing Committee never heard from respondent, for she chose not to participate in the proceeding.² In lieu of receiving and evaluating her live testimony under oath, the Committee accepted at face value what respondent had written in defense of her conduct in pre-hearing correspondence with Bar Counsel and a pleading she had filed in Superior Court. This written material was not submitted to the Committee by respondent; it was included in Bar Counsel's hearing exhibits, and Bar Counsel certainly did not vouch for its veracity. Cf. Harris v. United States, 834 A.2d 106, 117 (D.C.2003) (explaining that a party's submission to a tribunal of documents prepared by another may suggest adoption, if the submission truly manifests an intent to adopt or a belief in the truth of the statements contained in the documents). While hearsay is admissible in attorney disciplinary proceedings, findings of fact require a firmer foundation than a respondent's own uncorroborated, unsworn and uncross-examined assertions. When a respondent attorney has declined to subject herself to examination in the proper manner, at the proper time, before the proper tribunal, the self-serving claims she has made dehors the proceeding cannot be accepted if their credibility has not been established by other means. Any other rule would devalue Hearing Committee fact finding and undermine public confidence in the legitimacy of Bar discipline. In this case, therefore, we conclude that respondent's self-serving written representations did not amount to "substantial evidence of record."

A. Bar Docket No. 337-99

In BDN 337-99, Bar Counsel charged respondent with violating District of Columbia Rules of Professional Conduct 1.1(a) and 5.3(b) by failing to act competently and failing adequately to supervise a nonlawyer assistant in connection with respondent's service as court-appointed conservator of the estates of Charlie Mae Morton and Mary Virginia Hinton, two adult wards of the District of Columbia Superior Court.³ The charges relate to two bank accounts that respondent opened, one at Riggs National Bank on May 4, 1995, and the other at First Union National Bank on May 31, 1996, to hold funds belonging to Ms. Morton and Ms. Hinton, respectively. Respondent was the only authorized signatory on the accounts. She drew upon them from time to time to pay her wards' living expenses. Unbeknownst to respondent, however, an employee in her office made a number of unauthorized withdrawals from the two accounts.

Over a nine-month period, from September 1995 to June 1996, respondent's secretary, Lena Summers, forged respondent's signature on thirty-four checks drawn on the Morton Estate account and embezzled over $42,000. One of the checks was made out to Nordstrom's; the rest were payable to Ms. Summers herself. In June 1996, Ms. Summers also forged respondent's signature on two checks drawn on the Hinton Estate account. One of the checks, in the amount of $3,000, was made payable to Charlie Mae Morton and was deposited in Ms. Morton's conservatorship account. The payee on the other check, which was for $2,150, was Lena Summers.

Both Riggs and First Union sent respondent monthly bank statements detailing the activity in the Morton and Hinton Estate accounts. These statements included copies of the checks drawn on the accounts and presented to the bank in the preceding month. Had respondent looked at the bank statements, she immediately would have discovered her secretary's defalcations.

Unfortunately, respondent did not look at the statements. She had delegated the task of reviewing the monthly bank statements for the Morton and Hinton Estates, and the other estates she administered as conservator, to Ms. Summers herself. For each estate bank account, it was Ms. Summers's responsibility to log in the monthly statements when they arrived in respondent's office, staple the enclosed checks to each statement, review each statement for discrepancies, verify the account balances, and file the statements. Evidently trusting her secretary to perform all these tasks honestly and accurately, respondent did not review the bank statements or otherwise check her secretary's work.

Respondent also assigned to her secretary the task of preparing the annual accountings that she had to file in Superior Court for the estates under her supervision. These accountings were to be based on the bank statements for estate accounts and other original financial records. Ms Summers drafted a First Account for Ms. Morton's Estate at some point in mid-1996. This report covered the period May 3, 1995 to May 3, 1996, during which time Ms. Summers had negotiated all but three of the thirty-four forged checks drawn on the Morton Estate account. Although the First Account is not included in the record, there is no dispute that it did not disclose the unauthorized withdrawals made by Ms. Summers. In this instance too, as the Board found, respondent "appears not to have reviewed the primary-source financial documents — the monthly account statements — herself, but instead relied on Ms. Summers's (putative) distillations of the information in the statements." Not having checked it, respondent approved her secretary's dishonest work product and (allegedly) instructed her to file the First Account with the Superior Court. Ms. Summers evidently disobeyed that alleged instruction, for the First Account was not filed.

Relying on respondent's subsequent written explanations to the court and Bar Counsel of what went wrong, the Hearing Committee found that she "had observed her employee's work and competence for over a year, . . . had reason to trust her to do a good, and honest, job, [and] . . . did the training necessary to equip Ms. Summers to do the work she was assigned." Although respondent did make such claims (without, it is worth noting, elaborating on what they me...