In re Cleaver-Bascombe

• Decision Date: 27 November 2019
• Docket Number: No. 18-BG-1170,18-BG-1170
• Citation: 220 A.3d 266
• Parties: IN RE Karen P. CLEAVER-BASCOMBE, Petitioner. A Disbarred Member of the Bar of the District of Columbia (Bar Registration No. 458922)
• Court: D.C. Court of Appeals

220 A.3d 266

IN RE Karen P. CLEAVER-BASCOMBE, Petitioner. A Disbarred Member of the Bar of the District of Columbia (Bar Registration No. 458922)

No. 18-BG-1170

District of Columbia Court of Appeals.

Argued October 1, 2019

Decided November 27, 2019

Karen P. Cleaver-Bascombe, pro se.

Joseph N. Bowman, Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, and Julia L. Porter and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief.

Before Easterly and McLeese, Associate Judges, and Nebeker, Senior Judge.

Per Curiam:

Petitioner Karen P. Cleaver-Bascombe was disbarred in 2010 for submitting a fraudulent voucher for services she knew that she had not rendered and then giving knowingly false testimony before a Hearing Committee of the Board on Professional Responsibility. In re Cleaver-Bascombe , 986 A.2d 1191, 1192-1201 (D.C. 2010) (per curiam). In 2017, Ms. Cleaver-Bascombe filed a petition for reinstatement. After holding an evidentiary hearing, a Hearing Committee recommended that the petition should be denied. We agree.

I.

A petitioner seeking reinstatement must prove by clear and convincing evidence

(a) [t]hat the attorney has the moral qualifications, competency, and learning in law required for readmission; and (b) [t]hat the resumption of the practice of law by the attorney will not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest.

D.C. Bar R. XI, § 16(d)(1). We consider the following factors in determining whether a petitioner has made the required showings:

(1) the nature and circumstances of the misconduct for which the attorney was disciplined; (2) whether the attorney recognizes the seriousness of the misconduct; (3) the attorney's conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones; (4) the attorney's present character; and (5) the attorney's present qualifications and competence to practice law.

In re Yum , 187 A.3d 1289, 1292 (D.C. 2018) (per curiam).

We defer to a Hearing Committee's determinations of "basic facts," including credibility determinations. In re Bailey , 883 A.2d 106, 115 (D.C. 2005) (per curiam). Although the decision whether to grant a petition for reinstatement is ultimately ours, we give great weight to the recommendations of the Board and the Hearing Committee on that issue. In re Mba-Jonas , 118 A.3d 785, 787 (D.C. 2015) (per curiam).

II.

The first reinstatement factor is the nature and circumstances of the conduct for which Ms. Cleaver-Bascombe was disbarred. In re Yum , 187 A.3d at 1292. Those circumstances were determined in the original disbarment proceedings, and for the purpose of the current proceeding we do not understand Ms. Cleaver-Bascombe to challenge the factual determinations underlying her disbarment. Those factual determinations are reflected in this court's opinion in In re Cleaver-Bascombe , 986 A.2d at 1193-98. In sum, Ms. Cleaver-Bascombe was an attorney appointed to represent indigent criminal defendants under the Criminal Justice Act. Id. at 1193. This court upheld a finding that Ms. Cleaver-Bascombe fraudulently submitted a voucher for services that she knew she had not rendered. Id. at 1193-95. This court also upheld a finding that Ms. Cleaver-Bascombe gave deliberately false testimony to the Hearing Committee about the voucher. Id. at 1196-98. Finally, this court noted the Hearing Committee's conclusions that the testimony of a witness called by Ms. Cleaver-Bascombe was evasive, non-responsive, and contradicted by documentary evidence. Id. at 1197 n.8.

The court characterized Ms. Cleaver-Bascombe's misconduct as "extremely serious."

In re Cleaver-Bascombe , 986 A.2d at 1198 (internal quotation marks omitted). As we explained,

Where an attorney has deliberately falsified a voucher and sought compensation for work that he or she has not performed, or for time that he or she has not devoted to the case, that attorney's fitness to practice is called into serious question. This is especially true if the attorney has compounded his or her initial fraud by testifying falsely during the resulting disciplinary proceedings.

Id. at 1199 (internal quotation marks omitted); see also id. at 1200 ("[L]ying under oath on the part of an attorney for the purpose of attempting to cover-up previous misconduct is absolutely intolerable ....") (brackets, ellipses, and internal quotation marks omitted). We therefore concluded that Ms. Cleaver-Bascombe had been shown to "lack[ ] the moral fitness to remain a member of the legal profession," and we disbarred her. Id. at 1200-01.

The following evidence concerning the remaining disbarment factors was introduced at the reinstatement hearing. That evidence falls into several general categories.

A. Inaccurate Bankruptcy Filings.

Ms. Cleaver-Bascombe filed for bankruptcy in 2012. On a form requiring her to list transfers of property within the preceding two years, Ms. Cleaver-Bascombe checked the box "None." That was false, because Ms. Cleaver-Bascombe sold a home about three weeks before filing for bankruptcy, deposited over $100,000 in proceeds into her checking account, and then withdrew over $100,000 to pay for expenses relating to a construction project in Jamaica. On the form at issue, Ms. Cleaver-Bascombe "declare[d] under penalty of perjury that [she] read the answers contained in the foregoing statement of financial affairs and any attachments thereto and that they are true and correct." On a different form filed with the bankruptcy court, Ms. Cleaver-Bascombe indicated that she had $100 in her checking account, when in fact she had nearly $10,000. Ms. Cleaver-Bascombe also declared under penalty of perjury that she had read that form and that it was true and correct to the best of her knowledge. When the accuracy of her filings was challenged at a hearing in the bankruptcy matter, Ms. Cleaver-Bascombe testified at the hearing that she had read the documents at issue. Ms. Cleaver-Bascombe subsequently withdrew the bankruptcy petition.

When questioned about this incident before the Hearing Committee, Ms. Cleaver-Bascombe initially testified that she did not read the bankruptcy petition "at all." On further questioning, however, Ms. Cleaver-Bascombe testified instead that she had not read the petition "carefully." Ms. Cleaver-Bascombe testified that the bankruptcy filings were not intentionally false, but rather contained inadvertent inaccuracies because they were filed in haste to avoid foreclosure and because Ms. Cleaver-Bascombe was having personal problems.

B. Personal Use of Government-Issued Cell Phone.

While working for the United States Department of Agriculture, Ms. Cleaver-Bascombe incurred charges of approximately $600 making personal calls on a government-issued cell phone. There were disputes before the Hearing Committee about precisely when that happened, whether that conduct was contrary to the policies in effect at the time, and whether Ms. Cleaver-Bascombe should have known that her conduct was impermissible. Ms. Cleaver-Bascombe claimed to have repaid the government.

C. Recognition of Seriousness of Misconduct.

At a hearing in the bankruptcy case, Ms. Cleaver-Bascombe was asked what led to her disbarment, and she responded that she had submitted a voucher that had "maybe 30 or so entries of which two or so fees couldn't be substantiated."

During the reinstatement hearing, Ms. Cleaver-Bascombe repeatedly described her original conduct as inadequate, deficient, or shoddy recordkeeping, and she initially denied having committed perjury before the Hearing Committee in the original proceeding. Under cross-examination, Ms. Cleaver-Bascombe acknowledged that she had knowingly made a false representation on a voucher and eventually acknowledged having committed perjury before the Hearing Committee in the original proceeding. Ms. Cleaver-Bascombe initially denied that she had known that the witness she called at the original disciplinary hearing was going to lie, but she later acknowledged that that witness's testimony was part of a "cover-up."

D. Present Character and Competence.

Ms. Cleaver-Bascombe called three attorneys who testified that Ms. Cleaver-Bascombe was remorseful for her original misconduct, was of good character, and was a very capable attorney. On cross-examination, however, those witnesses acknowledged that they were not familiar with the...