In re Delate, 90-14.

• Decision Date: 06 September 1990
• Docket Number: No. 90-14.,90-14.
• Citation: 579 A.2d 1177
• Parties: In re Ellen R. DELATE, Respondent, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

579 A.2d 1177

In re Ellen R. DELATE, Respondent, A Member of the Bar of the District of Columbia Court of Appeals.

No. 90-14.

District of Columbia Court of Appeals.

Submitted April 5, 1990.¹

Decided September 6, 1990.

Before FERREN and FARRELL, Associate Judges, and MACK, Senior Judge.

FERREN, Associate Judge:

This disciplinary proceeding concerns respondent's alleged misconduct as a conservator in two separate cases. In the first case, the Board on Professional Responsibility concluded that respondent had neglected a legal matter entrusted to her, DR 6-101(A)(3), engaged in conduct prejudicial to the administration of justice, DR 1-102(A)(5), and failed to deliver files and assets to a client's duly authorized representative, DR 9-103(B)(4). In the second case, the Board concluded, once again, that respondent had neglected a legal matter entrusted to her and engaged in conduct prejudicial to the administration of justice. In addition, the Board concluded in the second case that respondent had intentionally failed to seek the lawful objectives of her client, DR 7-101(A)(1). As a sanction for all disciplinary violations in both cases, the Board recommends that we suspend respondent from the practice of law for six months and condition any reinstatement on proof of her fitness to resume practice.² We adopt the findings and conclusions of the Board as well as the recommended disposition.

I. Bar Docket No. 459-87

On February 20, 1985, Judge Iraline G. Barnes appointed respondent as the successor conservator of Sara Howell, an adult ward. Respondent accepted the appointment and posted the court-ordered bond. She also filed the required inventory of assets, although she did so approximately seven weeks after it was due. Respondent did not file an accounting by March 20, 1986, after the Deputy Registrar of Wills had mailed her notice to do so. On September 30, 1987, Judge Barnes notified respondent by certified mail that a hearing had been scheduled for November 6 to address her delinquency. The notice was returned unclaimed, and respondent did not appear at the hearing. Judge Barnes continued the hearing until November 27, 1987 and sent notice to respondent of the new hearing date; again, respondent did not attend. By order dated November 30, 1987, Judge Barnes removed respondent as conservator and appointed Henry Brylawski as successor conservator. A copy of the order was mailed to respondent and to Bar Counsel, among others.

Brylawski phoned respondent several times, asking for records concerning Howell. According to Brylawski, respondent promised to turn over her records but never did. She also failed to keep two appointments with Brylawski and failed to respond to his letter requesting both the records and access to Howell's retirement checks. Without assistance from respondent, Brylawski obtained the information he needed and, in so doing, discovered that in the last year of her appointment respondent had neither paid the residential facility where Howell resided nor sent an allowance to Howell. Upon notification by Judge Barnes, Bar Counsel began investigating this case and sent respondent a letter requesting an explanation of her conduct. Respondent did not reply to that letter or to two subsequent letters from Bar Counsel. Bar Counsel subpoenaed respondent to appear in Bar Counsel's office; respondent received the subpoena by personal service but did not appear. Bar Counsel then served respondent with a petition alleging neglect and other disciplinary violations. Respondent signed for the petition but did not file an answer. Respondent did appear at her first disciplinary hearing but did not appear at the second hearing, even though she was notified of the continuance date.

Bar Docket No. 274-88

On August 23, 1985, Judge Barnes appointed respondent as conservator for Willie Claire Bringman, then a 93-year-old resident of the Washington Home for Incurables, Inc. (the Home) and a ward of the court. On September 22, 1986, counsel for the Home filed a motion to remove respondent as conservator because she had not paid the monthly charges due for Bringman's care since she had become conservator and had not responded to phone calls or to a letter from the Home. On October 17, 1986, respondent filed a reply to the motion, claiming the Home's allegations were false. Less than one month later, in exchange for withdrawal of the Home's motion, respondent agreed in a praecipe filed with the court to take steps to assure payment of the arrearages and future charges and to submit monthly reports about the status of the ward's estate until the arrearages had been paid. Shortly thereafter, respondent filed a petition with the court for authorization to pay the arrearages out of the ward's assets. By July 1987, however, respondent was again significantly in arrears in payments to the Home. Respondent also failed to file an accounting due in September 1987. In November 1987, the Home petitioned again for respondent's removal. At a hearing on the petition before Judge Annice Wagner, held on June 10, 1988, a representative from the Home testified that respondent had not made payments which were due and that, although Bringman had died in December 1987, respondent had not filed a suggestion of death or a final accounting. See Super.Ct. Civ.R. 305(i) ("Upon the death of the person for whom the fiduciary is appointed, the fiduciary shall file a suggestion of death forthwith, and shall file a final account and report verified by the fiduciary within 60 days from the date of death."). Respondent, who was present at the hearing, claimed she had not made payments because she had been having trouble receiving her mail, including checks to Bringman, and because she was experiencing great difficulty locating a co-tenant of Bringman's joint account and obtaining the co-tenant's release of funds. Respondent also stated that although she had completed the accounting (which had been due in September 1987), she "made an error in entrusting delivery to another individual," and the document apparently never reached the court. She then supplied Judge Wagner with a duplicate copy. Respondent also testified that she had not filed the suggestion of death because she was attempting to verify who, if anyone, was Bringman's heir or next of kin. At the conclusion of the hearing, Judge Wagner removed respondent as conservator. Judge Wagner filed a written order to the same effect on June 16, 1988.

Bar Counsel began investigating the case and sent respondent two letters requesting an explanation. Respondent did not answer the letters, call Bar Counsel's office, or go to Bar Counsel's office. After a disciplinary petition had been served on her, respondent did not answer or appear at the disciplinary hearing held on March 7, 1989.

II.

We agree with the Board that there is sufficient evidence of record that respondent neglected both of these legal matters, DR 6-101(A)(3). She failed to file the required accountings and to make the required payments to the ward's residential facility in both cases; she failed to pay an allowance in the Howell case; and she failed to file a suggestion of death in the Bringman case. There is also sufficient record evidence that respondent engaged in conduct prejudicial to the administration of justice, DR 1-102(A)(5). Her failure to appear before Judge Barnes at the removal hearing in the Howell case, her failure to file an accounting in both cases and a suggestion of death in the Bringman case, and her failure to respond to reasonable inquiries of Bar Counsel support this conclusion. Brylawski's testimony provides sufficient evidence that, in the Howell case, respondent violated DR 9-103(B)(4) by failing to deliver files to a client's duly authorized representative: the successor conservator. According to Brylawski, respondent assured him she would meet with him and deliver the required files, but she defaulted on these assurances. We agree with the Board that although DR 9-103(B)(4) speaks only of delivering property (or paying funds) "to the client," the rule applies equally to a failure to deliver property to a client's duly authorized representative. Finally, the record supports a conclusion that respondent, in the Bringman case, intentionally failed to seek the lawful objectives of her client, DR 7-101(A)(1). Respondent agreed in a written praecipe filed with the court to make payments for Bringman's past and future care. In reliance on this agreement, the residential facility withdrew its motion for her removal as Bringman's conservator. After making one large payment against the arrearages, however, respondent stopped making payments. Intentional misconduct may be inferred from this default because respondent clearly understood her obligations and had induced reliance on her agreement to make all required payments.

In sum, all alleged ethical violations have been established. We turn to the sanction.

III.

According to D.C. Bar R. XI § 9(g), this court

shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.

The Board has recommended a six-month suspension from the practice of law, coupled with a condition that respondent prove fitness to practice law before the court allows reinstatement.

A.

We consider, first, whether a six-month suspension for the conduct at issue in this case is consistent with prior dispositions involving comparable conduct. We have noted that, generally, we will not suspend an attorney for simple neglect if the incident represents that attorney's first encounter with the disciplinary system. See In re Reback, 513 A.2d 226, 232 & n. 4 (D.C.1986) (en banc) ("first instance of neglect, of itself, normally warrants only a reprimand or...