In re Delate, No. 91-519.

Docket NºNo. 91-519.
Citation598 A.2d 154
Case DateOctober 08, 1991
CourtCourt of Appeals of Columbia District

598 A.2d 154

In re Ellen R. DELATE, Respondent.

No. 91-519.

District of Columbia Court of Appeals.

Submitted September 16, 1991.

Decided October 8, 1991.


Wallace E. Shipp, Jr., Deputy Bar Counsel, was on the brief for petitioner, the Office of Bar Counsel.*

No brief was filed and no appearance was entered for respondent.

Before FERREN and TERRY, Associate Judges, and NEWMAN, Senior Judge.

PER CURIAM:

The Board on Professional Responsibility has recommended that respondent, a member of the District of Columbia Bar, be suspended from the practice of law for two years, and that she be required to demonstrate her fitness to resume the practice of law if she seeks reinstatement in the Bar after her suspension has run its course. We adopt the Board's recommendation and incorporate by reference its report, which we attach hereto as an appendix. We note that respondent did not appear before either the hearing committee or the Board, did not file a brief with either the Board or this court, and has not in any way contested the charges against her, despite ample

598 A.2d 155
notice of the pendency of these disciplinary proceedings

It is therefore ORDERED that respondent, Ellen R. Delate, shall be suspended from the practice of law in the District of Columbia for two years, effective thirty days from the date of this order. Such suspension shall be in addition to the suspension previously ordered in In re Delate, 579 A.2d 1177 (D.C.1990). It is

FURTHER ORDERED that if respondent seeks reinstatement in the Bar after her two-year suspension has expired, she shall file with the Board on Professional Responsibility a petition for reinstatement, and shall furnish to the Board proof of her fitness to resume the practice of law. See D.C.Bar R. XI, §§ 3(a)(2) and 16(d).

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of: Ellen R. Delate, Respondent

Bar Docket No. 364-89

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This matter is before the Board on Professional Responsibility on the Report of Hearing Committee Number Three, dated October 22, 1990. The Committee found that Respondent, Ellen R. Delate, Esq., an attorney admitted to practice before the District of Columbia Court of Appeals, violated Disciplinary Rules DR 1-102(A)(5) (conduct prejudicial to the administration of justice); DR 6-101(A)(3) (neglect of a legal matter); DR 7-101(A)(1) (intentional failure to seek the lawful objectives of a client); DR 9-103(B)(3) (failure to maintain complete records and render appropriate accounts); and DR 9-103(B)(4) (failure to promptly pay or deliver funds, securities, or properties to the client upon request). These violations arise out of Respondent's appointment as conservator for Dorothy Mead Jacobson beginning April 17, 1984 and ending July 17, 1989 when she was removed for failure to complete the Second Accounting and failure to file a Final Accounting following the Ward's death in 1987.1

We have reviewed the record and find that the Committee's findings of fact are supported by substantial evidence in the record. In addition, we agree with the Committee's recommended sanction of a two-year suspension with a requirement to show fitness to return to practice. We also recommend that that suspension be imposed in addition to the six-month suspension imposed in In re Delate, 579 A.2d 1177 (D.C.1990).

FINDINGS OF FACT

On November 12, 1982, James McConville, an attorney representing members of the family of Dorothy Mead Jacobson, filed a Petition to Appoint a Conservator of the estate and person of Ms. Jacobson. Bar Ex. 2; (Tr. 9-11). Shortly thereafter, the Court appointed Judith Ludwic as conservator. (Tr. 11). On or about April 17, 1984, upon the withdrawal of Ms. Ludwic, the Court appointed the Respondent, Ellen R. Delate, successor conservator. Bar Ex. 4; (Tr. 11-12). Ms. Delate has been admitted to practice before the District of Columbia Court of Appeals since 1973. See Bar Ex. A.

On or about July 6, 1984, Respondent reported that the estate of Ms. Jacobson contained bank deposits of $30,668.29, personal property worth $3,248.28 and stock worth $7,430.94. Report at 3; Bar Ex. 5; (Tr. 25-26). In accordance with her duties as conservator, Respondent was required

598 A.2d 156
to make Accountings of the estate of Ms. Jacobson

The First Accounting was due the following year. Respondent, after receiving an extension, filed the First Accounting on May 29, 1985. Bar Ex. 6; (Tr. 18-19). It was subsequently approved by the Superior Court Probate Division on or about August 12, 1985. Report at 4. The Second Accounting was due on May 17, 1986. Bar Ex. 7. Again Respondent requested and was granted an extension of time in which to file it. Bar Ex. 8. Respondent failed to file this Accounting by June 7, 1986, the time limit granted under the extension.

On or about June 13, 1986, the Court received a letter from the Ward stating that her medical bills had not been paid. This letter also indicated that no money had been provided for the purchase of a winter coat or to take a vacation. Bar Ex. 9.

On or about November 25, 1986, the Clerk sent a letter of warning to Respondent demanding that the Second Accounting be filed by December 9, 1986. Bar Ex. 10. Finally, because the required Second Accounting had still not been filed, the Clerk sent a Removal of Delinquent Fiduciary notice to the Respondent on or about January 13, 1987. Bar Ex. 11. The matter was set for summary hearing on February 5, 1987. Bar Ex. 13. On February 5, 1987, an incomplete Second Accounting was filed by Respondent and the summary hearing was cancelled. Bar Ex. 14.

On June 26, 1987, the Ward died. Bar Ex. 1; (Tr. 13). Since the Ward's death no Final Accounting has been filed by Respondent. The Second Accounting remains incomplete.

The Clerk of the Court sent a Memorandum of Delinquent Fiduciary to the Court and Respondent on March 21, 1989, which was followed on March 23 by a Notice of Summary Hearing to be held on June 27, 1989 for Respondent's failure to file a Second, Third or Fourth Accounting for the Ward. Bar Ex. 1, 15, 16; (Tr. 13). No response from Respondent was received and the hearing date was subsequently reset for July 11, 1989. Bar Ex. 17; (Tr. 42-43).

Following the July 11, 1989 hearing, Respondent was removed as conservator by the Probate Division of Superior Court and replaced by James McConville. Bar Ex. 1 (Tr. 12-13). The matter was then referred to Bar Counsel. Since Mr. McConville's appointment, he has had no contact with Respondent despite numerous attempts by himself and the Auditor-Master to obtain files, information and access to the property and other assets in the Ward's estate. Upon examination, Mr. McConville found that bills had remained unpaid and little had been done to manage the estate. As a result, the estate had not gone to probate, creditors had not been paid, and the remaining assets of the estate had not been distributed to the heirs.

On September 28, 1989 the Office of Bar Counsel sent a letter to Respondent informing her of the allegations being made against her and requesting a response. Bar Ex. 19; (Tr. 55-56). The letter was not returned for failure to deliver and no response was received. (Tr. 56). A similar fate befell additional letters sent by Bar Counsel on October 25, 1989 and November 3, 1989. Bar Ex. 20, 21; (Tr. 56-57).

On November 21, 1989, Bar Counsel filed with the Board a Motion to Compel the Respondent to Respond to Bar Counsel's Written Inquiry. Bar Ex. 23; (Tr. 58-59). Respondent did not file an opposition or respond in any other way. (Tr. 59). Bar Counsel then proceeded to have process servers attempt to serve a subpoena on Respondent requiring her to appear before Bar Counsel and turn over the bank statements, personal property and stock certificates of the Ward. A subpoena sent by regular mail was not returned. Again Respondent failed to respond. Bar Ex. 22, 40; (Tr. 57-58).

On December 13, 1989, the Board ordered Bar Counsel to serve the Motion to Compel on Respondent personally. A copy of this Order was sent to Respondent. Bar Ex. 25; (Tr. 59). Personal service was attempted on ten separate occasions between December 14, 1989 and January 5,

598 A.2d 157
1990 at Respondent's last known residence. These attempts were unsuccessful. Bar Ex. 26, 27, 40 (Tr. 46-48, 60). Responding to Bar Counsel's filing of a Declaration of Reasonable Diligence, the Board issued an order on January 24, 1990 compelling Respondent to respond to Bar Counsel's investigation within ten days. Bar Ex. 29, 40; (Tr. 61). Bar Counsel caused this order to be served upon Respondent by having it posted on the door of her usual place of abode on January 30, 1990. Bar Ex. 30, 31, 40; (Tr. 48-49). Finally, on February 7, 1990 Respondent was personally served with the Board's order. No response was ever received. Bar Ex. 32, 40; (Tr. 49). On March 29, 1990 Respondent was personally served with the petition and specification of charges in this case. Bar Ex. D, 40; (Tr. 49-50)

Although he requested her cooperation soon after he was appointed successor conservator, Mr. McConville has not received any response from Respondent. Bar Ex. 39, (Tr. 27-28). This despite numerous attempts to contact her by telephone and through the mail. (Tr. 14). Similar requests for cooperation made by the Auditor-Master have also gone unheeded. Bar Ex. 38; (Tr. 27). Respondent has not at any time acknowledged or participated in these proceedings.

A hearing was held in this matter before Hearing Committee Number Three on May 8, 1990. At the time of the hearing the exact location of a number of items of the Ward's personal property as well as certain stock certificates, was unknown. Respondent failed to produce these items to the successor conservator. Bar Ex. 34, 35, 37, 38, 39; (Tr. 14-17, 21-24, 25-26, 27-29, 41). Mr. McConville was, however, attempting to...

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9 practice notes
  • IN RE LYLES, No. 94-BG-1408
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 18, 1996
    ...discipline, have warranted two-year suspensions with fitness requirements. See, e.g., In re Mintz, 626 A.2d 926 (D.C. 1993); In re Delate, 598 A.2d 154 (D.C. 1991); In re Alexander, 496 A.2d 244 (D.C. 1985); In re Thorup, 461 A.2d 1018 (D.C. 1983). In In re Tinsley, 582 A.2d 1192 (D.C. 1990......
  • In re Speights, No. 17-BG-1091
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 26, 2018
    ...for two years, namely: In re Lyles , 680 A.2d 408, 418 (D.C. 1996) ; In re Mintz , 626 A.2d 926, 928 (D.C. 1993) ; In re Delate , 598 A.2d 154, 161 (D.C. 1991). See also In re Alexander , 496 A.2d 244 (D.C. 1985) ; In re Thorup , 461 A.2d 1018 (D.C. 1983) ; In re Sheehy , 454 A.2d 1360 (D.C......
  • In re Hopkins, No. 95-BG-845.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 31, 1996
    ...A2d at 1061-62 n. 1. We have found violations of DR 1-102(A)(5) in various situations that meet these criteria. See, e.g., In re Delate, 598 A.2d 154 (D.C.1991) (failing, as conservator, to appear at hearing, file required accountings, and respond to inquiries of Bar Counsel); In re Sandgro......
  • In re Bradley, No. 12–BG–1205.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 11, 2013
    ...two-year suspension for failing to file complaints for four clients and completely ignoring clients calls and letters); In re Delate, 598 A.2d 154, 161 (D.C.1991) (imposing a two-year suspension on a court-appointed conservator of estate who neglected to file yearly accountings, pay medical......
  • Request a trial to view additional results
9 cases
  • IN RE LYLES, No. 94-BG-1408
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 18, 1996
    ...discipline, have warranted two-year suspensions with fitness requirements. See, e.g., In re Mintz, 626 A.2d 926 (D.C. 1993); In re Delate, 598 A.2d 154 (D.C. 1991); In re Alexander, 496 A.2d 244 (D.C. 1985); In re Thorup, 461 A.2d 1018 (D.C. 1983). In In re Tinsley, 582 A.2d 1192 (D.C. 1990......
  • In re Speights, No. 17-BG-1091
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 26, 2018
    ...for two years, namely: In re Lyles , 680 A.2d 408, 418 (D.C. 1996) ; In re Mintz , 626 A.2d 926, 928 (D.C. 1993) ; In re Delate , 598 A.2d 154, 161 (D.C. 1991). See also In re Alexander , 496 A.2d 244 (D.C. 1985) ; In re Thorup , 461 A.2d 1018 (D.C. 1983) ; In re Sheehy , 454 A.2d 1360 (D.C......
  • In re Hopkins, No. 95-BG-845.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 31, 1996
    ...A2d at 1061-62 n. 1. We have found violations of DR 1-102(A)(5) in various situations that meet these criteria. See, e.g., In re Delate, 598 A.2d 154 (D.C.1991) (failing, as conservator, to appear at hearing, file required accountings, and respond to inquiries of Bar Counsel); In re Sandgro......
  • In re Bradley, No. 12–BG–1205.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 11, 2013
    ...two-year suspension for failing to file complaints for four clients and completely ignoring clients calls and letters); In re Delate, 598 A.2d 154, 161 (D.C.1991) (imposing a two-year suspension on a court-appointed conservator of estate who neglected to file yearly accountings, pay medical......
  • Request a trial to view additional results

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