In re Dickens, 120717 DCCA, 16-BG-762
| Opinion Judge | Reid, Senior Judge |
| Party Name | In re Dorrance Dickens, Respondent, and In re Deborah Luxenberg, Respondent. (Bar Registration Nos. 450751, 215657) |
| Attorney | Richard J. Berwanger, Jr., with whom Edward J. Hutchins, Jr., was on the brief, for Respondent Luxenberg. Julia L. Porter, Senior Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel at the time the brief was filed, and Jennifer P. Lyman, Senior Assistant Discipli... |
| Judge Panel | Before Glickman and Fisher, Associate Judges, and Reid, Senior Judge. |
| Case Date | December 07, 2017 |
Argued April 25, 2017
On Report and Recommendation of the Board on Professional Responsibility (BDN-271-11, BDN-10-12, BDN-11-12, and BDN-272-11)
Richard J. Berwanger, Jr., with whom Edward J. Hutchins, Jr., was on the brief, for Respondent Luxenberg.
Julia L. Porter, Senior Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel at the time the brief was filed, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.
Before Glickman and Fisher, Associate Judges, and Reid, Senior Judge.
Reid, Senior Judge
This attorney disciplinary case involves the main partner in a small law firm, respondent Deborah Luxenberg, and an attorney, respondent Dorrance Dickens, who started at the firm as a law clerk but became an associate and eventually a partner. Disciplinary Counsel1 charged Ms. Luxenberg with several violations of the District of Columbia Rules of Professional Conduct after Mr. Dickens allegedly stole at least $1, 434, 298.50 from three estates, including that of Ms. Luxenberg's client, Michelle Seltzer. Following his theft, Mr. Dickens fled to an island outside of the United States.
The Board on Professional Responsibility ("the Board") has recommended that Mr. Dickens be disbarred from the practice of law due to his violation of multiple rules of professional conduct, including Rule 1.15 (a) and (c), commingling and misappropriation, and Rule 8.4 (c), conduct involving dishonesty, fraud, deceit, or misrepresentation.2 The Board also has recommended that Ms. Luxenberg be suspended from the practice of law for six months due to her violation of Rules 1.3 (a), 5.1 (a), and 5.1 (c)(2), relating to the responsibility of partners in law firms to ensure competency and ethical behavior by attorneys in the firm.
Ms. Luxenberg argues on appeal that the Board erred by (1) considering evidence from disciplinary matters to which she was not a party; (2) finding that she violated Rules 1.3 (a), 5.1 (a), and 5.1 (c); and (3) recommending a "harsh" sanction that is inconsistent with this court's case law and that is greater than the 45-day sanction recommended by the Board's Hearing Committee. Disciplinary Counsel argues that the Board erred by failing to find that Ms. Luxenberg also violated Rules 1.3 (b)(1) and (2) pertaining to (a) a lawyer's intentional failure to seek the lawful objectives of a client and (b) prejudice or damage to the client; Rule 1.7 (b)(4) concerning a lawyer's representation of a client where the lawyer's professional judgment may be affected by her own interest; and Rule 8.4 (a) regarding a lawyer's professional misconduct by knowingly assisting or inducing another to violate or attempt to violate the Rules of Professional Conduct. Disciplinary Counsel also asserts that given the record in this case, the proper sanction for Ms. Luxenberg is a one-year suspension, with a fitness requirement.
For the reasons stated below, we accept the recommendation of the Board.
FACTUAL SUMMARY
The findings of fact contained in the voluminous Report and Recommendation of the Board's Hearing Committee Number 12, and supporting record evidentiary documents, reveal the following factual context. Ms.
Luxenberg commenced her practice of law as a member of the District of Columbia Bar in 1975. Eventually she was joined in practice by her husband, Stephen Johnson. While Mr. Dickens was completing his legal studies, he became a law clerk at the firm; he was hired in October 1995 because of his computer skills. His status changed to that of an associate in the firm in October 1996 when he became a member of the District of Columbia Bar.
In 1998, the firm incorporated in Maryland as Luxenberg and Johnson, and in 2003, when Mr. Dickens became a partner, the firm changed its name to Luxenberg, Johnson and Dickens. The firm had no partnership agreement but Ms. Luxenberg always retained a 52% interest in the firm. Ms. Luxenberg's practice has been devoted to family matters such as divorce and custody. Although she has never been the managing partner of the firm, she decided which clients the firm would represent and who would handle the client matters. Mr. Johnson also had a family law practice, and he took on cases in other areas of the law.
Mr. Dickens handled some cases with Ms. Luxenberg and some with Mr. Johnson, but also took on cases on his own, such as the representation, beginning in 2000, of Vernon Harris in the probate of Mr. Harris's sister's estate, and the representation of the personal representative of the estate of Dr. JoAnne S. O'Brien in April 2008 (the "Garrity/O'Brien" matter). There was a different arrangement in the case of Ms. Seltzer whose separation and divorce Ms. Luxenberg had handled in 1994. When Ms. Seltzer sought Ms. Luxenberg's representation in 2004 to update her estate plan, which included a revocable trust created in 1990 (the "1990 trust"), Ms. Luxenberg explained to Ms. Seltzer that she did not do that type of legal work; however, during a meeting at the law firm, Ms. Luxenberg introduced Ms. Seltzer to Mr. Dickens as the person who could do the required work. Mr. Dickens made a few amendments in 2004 to the 1990 trust, and he prepared a general power of attorney as well as a healthcare power of attorney for Ms. Seltzer. In response to Ms. Seltzer's request, Ms. Luxenberg became a co-trustee of the trust; Ms. Seltzer remained as the other co-trustee. In mid-November 2004, Ms. Seltzer executed the amended trust as grantor and trustee, and Ms. Luxenberg signed the document as trustee.
In early 2007, Ms. Luxenberg and Mr. Johnson decided to move the main office of the firm from the District of Columbia to Maryland, and to maintain satellite offices in the District and Virginia. By this time Mr. Johnson's law practice was limited and his time centered on administration of the firm. Even though he was not a member of the Virginia Bar and Ms. Luxenberg had knowledge of that fact, Mr. Dickens worked out of the Virginia office that the firm leased in February 2007; the lease was signed by Mr. Dickens but the firm paid the rent for several months before delegating that responsibility to Mr. Dickens.
The management of the small firm was not rigorous after the 2007 move of the main office to Maryland and Mr. Dickens' relocation to the Virginia office. Although the firm appears to have some policies and procedures to ensure compliance with ethical obligations, these were either loosely followed or not enforced with respect to matters handled by Mr. Dickens. Generally, the firm held biweekly staff meetings during which open cases were reviewed; however, Mr. Dickens' attendance at these meetings decreased significantly, his participation by phone was sporadic, and there were occasions on which he simply could not be reached. Moreover, despite the firm's record-keeping policies, Mr. Dickens failed to execute retainer agreements with clients that he represented, maintain proper billing records, and save electronic client documents to the firm's computer server. Even when the firm discovered that Mr. Dickens had clients for whom the main office had no records, or when the firm received checks, sometimes for substantial amounts of money, without documentation - as in the Garrity/O'Brien matter - the firm made little or no effort to ensure that Mr. Dickens followed its policies and procedures, as well as the ethical rules of the legal profession.
There was limited contact between Ms. Seltzer and the Luxenberg firm in 2006 and 2007 regarding her trust. In late 2007, Ms. Seltzer was diagnosed with Stage IV colon cancer. She underwent surgery, followed by chemotherapy treatment which she received through 2009. During that period of time, in addition to Ms. Luxenberg's role as co-trustee of Ms. Seltzer's trust, Ms. Seltzer and Ms. Luxenberg became friends.
Sometime in early 2009, Mr. Dickens advised Ms. Luxenberg that he planned to leave the firm to spend time on other interests, but that he could still handle some legal matters; he traveled quite a bit, apparently in connection with a Middle East telecommunications venture and also business at the Vatican. Around April 2009, Ms. Seltzer contacted Ms. Luxenberg because she desired some changes in her estate plan, to ensure that she properly provided for her adult children, Eric Seltzer and Jerri Seltzer Falk. She stated in an email on May 11 that if Ms. Luxenberg was too busy to handle her request and would like for Mr. Dickens to do so, that would be "okay." On the same day, Ms. Luxenberg responded that Mr. Dickens "would have to deal with any trust questions." Thereafter, Ms. Luxenberg sent Mr. Dickens an email detailing information about Ms. Seltzer's children and the family trusts; she ended the email by saying, in part, "I have told Michelle [Ms. Seltzer] I will still be involved and will talk to her and if necessary do conference calls with her and you." In addition, Ms. Luxenberg informed Ms. Seltzer that the firm would charge a discounted hourly rate of $375 "because of our long relationship with you."
When she had not heard from Mr. Dickens, Ms. Seltzer sent emails to Ms. Luxenberg on July 6, and again on August 10, about the lack of communication from Mr. Dickens. On August 12, 2009, Ms. Luxenberg sent an email to Mr. Dickens, saying "I need to know if you can do this realistically. Otherwise we need to get someone else to do it." Mr. Dickens sent Ms. Seltzer a responsive communication and Ms. Luxenberg arranged for Ms. Seltzer and...
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