IN RE EDWARDS, 06-BG-1480

• Decision Date: 11 March 2010
• Docket Number: 07-BG-608.,No. 06-BG-1480,06-BG-1480
• Citation: 990 A.2d 501
• Parties: In re Lucy R. EDWARDS, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 197020).
• Court: D.C. Court of Appeals

990 A.2d 501

In re Lucy R. EDWARDS, Respondent A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 197020).

Nos. 06-BG-1480, 07-BG-608.

District of Columbia Court of Appeals.

Argued May 27, 2009.

Decided March 11, 2010.

As Amended March 18, 2010.

Nigel L. Scott, Washington, for respondent, who submitted her brief pro se.

Ross T. Dicker, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, were on the brief, for Office of Bar Counsel.

Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and BELSON, Senior Judge.

BLACKBURNE-RIGSBY, Associate Judge:

In the principal one of these two consolidated matters (No. 07-BG-608), the Board on Professional Responsibility (the "Board") recommends that respondent be disbarred for intentional or reckless misappropriation of $2,000 that her client, Mark Green, had entrusted to her in 1995 to satisfy his creditors and prevent foreclosure of his condominium. We accept the Board's recommendation of disbarment based upon its thorough, painstakingly considered report—adopting for the most part the likewise meticulous findings of fact by Hearing Committee No. One— which we append to this opinion. Our brief ensuing discussion assumes familiarity with the Board's report. In the second, unrelated matter before us (No. 06-BG-1480), the Board recommends that respondent be suspended for thirty days for misconduct involving her failure, for years after the death of her client William Dickerson, to locate and file with the court the original Will she had drafted on his behalf and which named her as the personal representative. Here, too, we accept the Board's recommendation; we discuss this matter briefly in footnote 2, infra.

We deem it necessary to answer only a single point made by respondent in opposition to the Board's recommendation of disbarment. She argues that the Board, and implicitly the Hearing Committee, applied the preponderance of evidence standard to resolve the key factual issue of whether her client (Green) gave her the $2,000 to pay attorney's fees owed her (as respondent contends) or instead entrusted her with that money for use on his behalf (as the Board and Hearing Committee found). Thus, in respondent's view, the Board ignored Bar Counsel's obligation to prove misconduct, including the core factual allegations underlying the charged misconduct, by clear and convincing evidence.

It is, of course, "Bar Counsel's burden to establish by clear and convincing evidence that respondent violated the Rules of Professional Conduct." In re Mitchell, 727 A.2d 308, 313 (D.C.1999). Moreover, we have said that "factual findings underpinning disciplinary charges must be supported by clear and convincing evidence." In re Anderson, 778 A.2d 330, 335 (D.C.2001) (quoting In re Williams, 464 A.2d 115, 119 (D.C.1983)). Whether that rule applies to all such facts, including historical and subsidiary facts contributing to a mosaic of alleged misconduct, is not something we need consider here. We agree with respondent that at least the pivotal "threshold issue" here (the Board's term) of whether respondent received and held the $2,000 in trust for Green required proof by clear and convincing evidence before it could be answered affirmatively. However, none of this helps respondent for the following reasons.

First, appellant did not raise the issue of application of the wrong standard of proof in her brief to the Board (which accordingly did not address it), and, indeed, failed to raise it with the court until her reply brief—both reasons why we would be within our authority to ignore it. See In re Artis, 883 A.2d 85, 97 (D.C.2005) ("We have held consistently that an attorney who fails to present an issue to the Board waives it and cannot present it for the first time to this court."); Stockard v. Moss, 706 A.2d 561, 566 (D.C.1997) ("It is the longstanding policy of this court not to consider arguments raised for the first time in a reply brief."). Furthermore, it is not at all apparent from the Hearing Committee's report that it applied only a preponderance of the evidence standard in finding that respondent received—indeed, knew she had received—the $2,000 in trust for her client. Rather, the Committee stated explicitly at the onset its understanding that "clear and convincing evidence" was the applicable standard of proof. It then arrayed in detail (as did the Board in its report) the evidence of respondent's own contemporaneous conduct demonstrating, in the Committee's view, both that the entire $2,000 had been entrusted to respondent as client property and that she knew this to be the case. Respondent points to nothing in the Committee's analysis suggesting that it applied a lesser (i.e., preponderance) standard of proof in finding incredible her defense that she had received the money in payment of attorney's fees.

Finally, this court bears ultimate responsibility for the imposition of discipline, and we may make our own determination of whether clear and convincing evidence supports the Hearing Committee's finding—at least where our conclusion on the point contradicts nothing in the Committee's (or the Board's) analysis.¹ The evidence arrayed in the Board's report leaves us with no doubt that Bar Counsel proved respondent's receipt of client funds by clear and convincing evidence. Moreover, the evidence supports—equally convincingly—the Board's conclusion that respondent was at least reckless in her misuse of the entrusted funds. Cf. In re Berkowitz, 801 A.2d 51 (D.C.2002).

Accordingly, in No. 07-BG-608, we order respondent's disbarment from the practice of the law in the District of Columbia, effective thirty days from the date of this opinion. See D.C. Bar. XI, § 14(f). For the purpose of seeking reinstatement to the Bar, the period of disbarment shall not be deemed to begin until respondent files a sufficient affidavit pursuant to D.C. Bar R. XI, § 14(g). In No. 06-BG-1480 we order her suspension from the practice of law for thirty days, to run concurrently with her disbarment.²

Lastly, in No. 07-BG-608, we order as a condition of reinstatement that respondent pay restitution to her client of $1,000 with interest at the legal rate of 6% from June 7, 1995.

So ordered.

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of LUCY R. EDWARDS, Respondent. Bar Docket No. 397-96

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

The Office of Bar Counsel charged Lucy R. Edwards ("Respondent") with eight separate violations of the disciplinary rules, growing out of her representation of Mr. Mark Green in an effort over two years to stave off foreclosure on his condominium. Hearing Committee One (the "Committee") concluded that Respondent violated a number of Rules, including misappropriation, and recommends disbarment. The Board on Professional Responsibility (the "Board") agrees.

I. PROCEDURAL BACKGROUND

Bar Counsel initially filed a petition instituting formal disciplinary proceedings and a specification of charges on March 12, 1997. On May 19, 1997, Bar Counsel filed a Motion to Dismiss Without Prejudice, which the Board granted on May 27, 1997. Bar Counsel submitted the petition and specification of charges now before the Board on October 21, 2005. Respondent filed an Answer on May 11, 2006, admitting many of the facts asserted by Bar Counsel but denying all of the charges.

The evidentiary hearing was held on May 23, 2006. Respondent was present and represented by counsel. Assistant Bar Counsel called two witnesses: Respondent and her client, Mark R. Green. Bar Counsel moved to introduce Bar Exhibits ("BX") 1 through 18, 25, 26, and 30, which were admitted without objection. Tr. at 304, 312.¹ During Respondent's case, Respondent's Exhibits ("RX") A, B, C, and D, were introduced and admitted without objection. Tr. 295-97, 307-08. No additional witnesses were presented by Respondent. At the end of the hearing, the Committee made a preliminary, nonbinding determination that Bar Counsel had sustained its burden, under the clear and convincing evidence standard, that Respondent had committed some of the charged violations and the Committee requested briefing from the parties on all of the charges. Tr. at 306. Bar Counsel then submitted exhibits in aggravation and Respondent testified on her behalf during the mitigation phase of the hearing. Tr. at 315-33.

Bar Counsel submitted to the Committee proposed findings of fact, conclusions of law, and recommendations as to sanction ("BC Brief") on June 26, 2006, and Respondent submitted proposed findings of fact and conclusions of law ("R Brief") on July 17, 2006. Bar Counsel submitted a reply brief on August 2, 2006. The Committee issued its Report December 26, 2006.

II. PROPOSED FINDINGS OF FACT

With minor alterations that do not change the significance of the findings of fact, the Board adopts the well-written findings of the Committee.

1. Respondent is a member of the Bar of the District of Columbia Court of Appeals, having been admitted by examination on February 18, 1965, and assigned Bar number 197020. BX A; Tr. at 69-70. In 1994, she moved her practice to 1424 K Street, N.W., in the District of Columbia. Tr. at 74.

Retention of Respondent by Mark Green

2. On March 7, 1994, Mark R. Green, then a resident of the District of Columbia, met Respondent and retained her to assist him in filing for bankruptcy to protect his condominium, located at 1736 Willard Street, N.W., from foreclosure after he fell behind in making mortgage and condominium fee payments. BX 2 at 5; Tr. at 75, 186-90, 233. A foreclosure sale had been scheduled for two days later, on March 9, 1994. BX 9 at 28; Tr. at 233. Mr. Green agreed to pay a flat $1,000 fee for Respondent to prepare the bankruptcy filing, attend a meeting with his creditors, and secure an order from the...