In re Elgin, No. 04-BG-919.

Docket NºNo. 04-BG-919.
Citation918 A.2d 362
Case DateMarch 08, 2007
CourtCourt of Appeals of Columbia District
918 A.2d 362
In re Laurence A. ELGIN, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals Bar Registration (Bar Registration No. 159582).
No. 04-BG-919.
District of Columbia Court of Appeals.
Argued October 13, 2005.
Decided March 8, 2007.

[918 A.2d 365]

James P. Schaller, with whom Arthur D. Burger was on the brief, Washington, for respondent.

Julia L. Porter, Senior Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Acting Bar Counsel at the time, was on the brief, Washington, for Bar Counsel.

Elizabeth J. Branda, Executive Attorney, for the Board on Professional Responsibility.

Before REID and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.

REID, Associate Judge:


The Board on Professional Responsibility ("the Board" or "the BPR") has recommended that respondent, Laurence A. Elgin, be suspended from the practice of law for six months and be required to pay Saundra Burka, one of his clients and a close friend of Mr. Elgin's wife, restitution in the amount of $5,000.00 with interest as a condition of reinstatement. The Board adopted the findings of the Hearing Committee ("the Committee") which determined that Mr. Elgin had violated the District of Columbia Rules of Professional Responsibility because he: 1) failed to consult with his client concerning a settlement;1 2) intentionally prejudiced his client's interests;2 3) failed to keep his client reasonably informed about the terms and conditions involved in the initiation and settlement of a lawsuit;3 4) failed to adequately explain to his client the basis for his legal fees;4 5) failed to disclose a conflict of interest to his client;5 6) entered into an impermissible business transaction with his client;6 7) engaged in dishonest

918 A.2d 366

conduct;7 and 8) interfered with the administration of justice.8 The Board agreed with the Committee that Mr. Elgin had not violated Rule 1.15(b) by making unauthorized use of Ms. Burka's credit card, and that, in fact, Ms. Burka had authorized use of the credit card.9 However, because the Board decided that the Committee's recommendation of a one-year suspension as a sanction was overly harsh, it reduced the recommended sanction to six months, with the condition that Mr. Elgin pay restitution to Ms. Burka before he could be reinstated. The District of Columbia Bar Counsel ("Bar Counsel") and Mr. Elgin filed exceptions to the Board's report and recommendation.

Bar Counsel argues that Mr. Elgin's "dishonesty was far more pervasive and egregious than the Hearing Committee and the Board concluded," and that the sanction recommended by the Board is too lenient. Bar Counsel believes the appropriate sanction is either disbarment or a three-year suspension, full restitution,10 and a fitness requirement as a condition of reinstatement. Mr. Elgin contends in his brief that a suspension of six months is inordinately severe, and that the court should impose public censure as his sanction, in addition to ordering restitution as a condition of reinstatement. During oral argument, Mr. Elgin expressed the view that, in the alternative, a three-month suspension, with a restitution requirement, would be acceptable.

Given the seriousness of Mr. Elgin's misconduct and in light of sanctions imposed in pertinent past cases, we impose the Board-recommended sanction of suspension for six months, and restitution in the amount of $5,000.00 to Ms. Burka, with interest, as a condition of reinstatement.

FACTUAL SUMMARY

As a result of Ms. Burka's complaint, on August 16, 2000, Bar Counsel filed specification of charges and began formal disciplinary proceedings against Mr. Elgin, alleging that he violated Rules 1.2, 1.3(b)(2), 1.4(a) and (b), 1.5(b), 1.7(b)(4), 1.8(a), 1.15(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. This matter was heard by the Committee on February 2, 7 and 16; March 19 and 21; and May 5 and 12, 2001. Bar Counsel called several witnesses, including Ms. Burka and Mr. Burka. Mr. Elgin testified and called Mrs. Elgin and other witnesses. The Hearing Committee issued its report and recommendation on December 3, 2003, finding

918 A.2d 367

that Mr. Elgin had violated Rules 1.2, 1.3(b)(2), 1.4(a) and (b), 1.5(b), 1.7(b)(4), 1.8(a), 8.4(c), and 8.4(d), but not Rule 1.15(b).

The Committee's Pertinent Factual Findings

The record compiled by the Committee shows that Mr. Elgin first met Ms. Burka in 1980 at his wedding. His wife, Eileen Elgin ("Mrs. Elgin"), and Ms. Burka met in 1973 while working together as real estate trainees and agents in Northern Virginia. They later became close personal friends. In 1982, Ms. Burka lent Mrs. Elgin $6,000.00 to assist the Elgins' with their personal expenses.11

The controversy over Mr. Elgin's representation of Ms. Burka has its roots in the year 1983. In early 1983, Mr. Elgin provided Ms. Burka with legal services in relation to a greeting card company that she intended to create. The Committee found that Mr. Elgin had worked 36.25 hours for Ms. Burka on this venture and was compensated in the amount of $2,500. Despite Mr. Elgin's contentions that he regularly represented Ms. Burka between 1983 and 1993, the Committee determined that from April 5, 1983 to 1993, he received no other remuneration for any legal services he provided to Ms. Burka. While the Committee concluded that Mr. Elgin had intermittently provided legal advice to Ms. Burka, it did not consider such advice to constitute "regular representation in the usual sense of the phrase."

The relationship between Ms. Burka and the Elgins became more complicated in 1993, when the Burkas' marriage collapsed and Ms. Burka required legal assistance. As part of the termination of their marriage, in early 1993, the Burkas entered into a Property Settlement Agreement ("PSA"). The PSA provided that a defaulting party would be responsible for "all reasonable fees and costs (attorney's fees, court costs, and the like) incurred by the party seeking enforcement of the Agreement." Consistent with the PSA, Ms. Burka was awarded a cash sum and alimony for five years. A few months later, in or about May 1993, Mr. Burka sued his ex-wife, alleging that during her final walk-through of their marital home, she had violated the terms of the PSA by taking property designated for him. Mr. Burka sought the return of or compensation for the property, as well as attorney's fees. In October 1993, this action was consolidated by the Fairfax, Virginia Circuit Court with the Burkas' divorce proceeding. Ms. Burka initially chose Mark Barondess to represent her, but when it became clear he might be called as a witness, she began searching for alternate, less expensive counsel.

After discussing the matter with Mrs. Elgin, Ms. Burka asked and Mr. Elgin agreed in October 1993 to represent her in the consolidated action for a flat fee of $10,000.00 plus expenses.12 It is uncontested

918 A.2d 368

that this oral fee agreement was never reduced to writing. Ms. Burka paid the $10,000.00 fee in addition to other expenses, which included charges for local counsel since Mr. Elgin was not a member of the Virginia Bar. The Committee found that there was such confusion over the cost of the representation that it could not be said that Mr. Elgin had adequately explained the terms of his fees to Ms. Burka.13

The confusion over the attorney's fees intensified in late 1993 when the Internal Revenue Service ("IRS") notified Ms. Burka that she owed $34,000.00 plus $4,500.00 in interest relating to a joint 1991 tax return filed by the Burkas; she paid the sum in protest. In early 1994, Mr. Elgin alleged as an affirmative defense in the consolidated action against Ms. Burka, that Mr. Burka had breached the PSA by applying to the IRS for payment of that portion of the 1991 tax refund received by Ms. Burka. Mr. Elgin also filed a separate action in May 1994, alleging the same misconduct on the part of Mr. Burka, and submitted a motion to join the separate claim to the consolidated action. In July of 1995 the Fairfax Circuit Court denied Mr. Elgin's motion, and on August 30, 1995, Mr. Elgin filed a breach of contract action in the Fairfax Circuit Court pertaining to the IRS matter. When Mr. Burka's motion to dismiss this claim failed in early December 1995, the discovery phase proceeded during which Mr. Elgin offered and Mr. Burka rejected a settlement offer. In July 1996, the Fairfax court dismissed the breach of contract action with prejudice.

In July of 1994, Mr. Burka won his consolidated action. Ms. Burka, still represented by Mr. Elgin, appealed and lost again as the Court of Appeals of Virginia affirmed the judgment in favor of Mr. Burka on May 2, 1995. Mr. Elgin, on behalf of Ms. Burka, then petitioned for leave to appeal to the Supreme Court of Virginia but on September 15, 1995, that court dismissed the petition. The Committee found that "Ms. Burka was deeply involved in many of the details of the litigation of the [various legal actions], . . . that she raised many considerations that required substantial amounts of Mrs. Elgin's time to listen and record them and required significant amounts of [Mr. Elgin's] time to review and consider what action to take."

From an examination of the evidence regarding these legal actions and from the testimony of various witnesses, the Committee discredited Ms. Burka's testimony that she only discovered that Mr. Elgin was not a Virginia lawyer on the "`first day of court in March '94.'" Although the Committee found that the Elgins never explicitly advised Ms. Burka at the outset that Mr. Elgin was not a Virginia lawyer, it credited Mrs. Elgin's testimony that Ms. Burka knew this from previous legal dealings with Mr. Elgin and it also credited Mr. Elgin's testimony that Ms. Burka was heavily involved in the selection of local counsel. The Committee did not agree with Bar Counsel that Ms. Burka was unaware that she would have to pay additional expenses above the $10,000.00...

To continue reading

Request your trial
25 practice notes
  • In re Robinson, No. 18-112
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 22, 2019
    ...credibility of witnesses and resolution of disputed or contradictory testimony is for the finder of fact. See In re Elgin, 918 A.2d 362, 373 (D.C. 2007) (explaining that court defers to findings of fact and credibility determinations made by Board of Professional Responsibility). We conclud......
  • In re Cleaver-Bascombe, No. 06-BG-858.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 14, 2010
    ...inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9(h) (2006); accord, In re Elgin, 918 A.2d 362, 373 (D.C.2007); In re Berryman, 764 A.2d 760, 766 (D.C.2000). Similarly, "the Board is obliged to accept the hearing committee's factual fin......
  • In re Yelverton, No. 13–BG–844.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 24, 2014
    ...has acknowledged his or her wrongful conduct, and (7) mitigating circumstances.” In re Martin, 67 A.3d at 1053 (quoting In re Elgin, 918 A.2d 362, 376 (D.C.2007) ).Respondent's case presents some mitigating factors. The Board and the Hearing Committee found that respondent's conduct did not......
  • In re Robinson, No. 2018-112
    • United States
    • February 22, 2019
    ...credibility of witnesses and resolution of disputed or contradictory testimony is for the finder of fact. See In re Elgin, 918 A.2d 362, 373 (D.C. Cir. 2007) (explaining that court defers to findings of fact and credibility determinations made by Board of Professional Responsibility). We co......
  • Request a trial to view additional results
25 cases
  • In re Robinson, No. 18-112
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 22, 2019
    ...credibility of witnesses and resolution of disputed or contradictory testimony is for the finder of fact. See In re Elgin, 918 A.2d 362, 373 (D.C. 2007) (explaining that court defers to findings of fact and credibility determinations made by Board of Professional Responsibility). We conclud......
  • In re Cleaver-Bascombe, No. 06-BG-858.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 14, 2010
    ...inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9(h) (2006); accord, In re Elgin, 918 A.2d 362, 373 (D.C.2007); In re Berryman, 764 A.2d 760, 766 (D.C.2000). Similarly, "the Board is obliged to accept the hearing committee's factual fin......
  • In re Yelverton, No. 13–BG–844.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 24, 2014
    ...has acknowledged his or her wrongful conduct, and (7) mitigating circumstances.” In re Martin, 67 A.3d at 1053 (quoting In re Elgin, 918 A.2d 362, 376 (D.C.2007) ).Respondent's case presents some mitigating factors. The Board and the Hearing Committee found that respondent's conduct did not......
  • In re Robinson, No. 2018-112
    • United States
    • February 22, 2019
    ...credibility of witnesses and resolution of disputed or contradictory testimony is for the finder of fact. See In re Elgin, 918 A.2d 362, 373 (D.C. Cir. 2007) (explaining that court defers to findings of fact and credibility determinations made by Board of Professional Responsibility). We co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT