In re Evans

• Decision Date: 27 April 2006
• Docket Number: No. 05-BG-538.,05-BG-538.
• Citation: 902 A.2d 56
• Parties: In re Dorsey EVANS, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 3939).
• Court: D.C. Court of Appeals

Page 56

902 A.2d 56

In re Dorsey EVANS, Respondent A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 3939).

No. 05-BG-538.

District of Columbia Court of Appeals.

April 27, 2006.

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

PER CURIAM:

In this uncontested case, the Board on Professional Responsibility ("Board") has found that respondent Dorsey Evans violated Rules 1.1(a) (competent representation), 1.1(b) (skill and care), 1.7(b)(4) (conflict of interest), and 8.4(d) (conduct that seriously interferes with the administration of justice). This court will accept the Board's findings as long as they are supported by substantial evidence in the record. D.C. Bar R. XI, § 9(g)(1). We find substantial support in the record for the Board's findings, and accordingly, we accept them.

We append the Board's thorough and instructive report to this opinion.¹ As the report explains, the "central factor" in respondent's misconduct was a conflict of interest arising from his dual roles as both the owner of a title company that handles real estate loan closings and a lawyer whose practice includes probate and real estate matters. The conflict that led respondent into his ethical difficulties developed when his title company was contacted to close a real estate loan. It was discovered that the property to be encumbered was not owned by the prospective borrower, but instead belonged to the unprobated estate of the borrower's deceased mother-in-law. In his capacity as a lawyer, respondent thereupon undertook to represent the borrower and initiate a probate proceeding to secure her title to the property she wished to encumber. The potential conflict of interest was created by respondent's personal financial interest, through his ownership of the title business, in facilitating the closing of the loan. Respondent did not obtain his client's informed waiver of this potential conflict, which, the Board found, led him into a number of errors and more serious failings.

The Board recommends a six month suspension, during which time respondent would be required to complete six hours of continuing education classes in probate law and legal ethics, that the final ninety days of his suspension be stayed on the condition that respondent agree to be placed on probation for a period of one year, that during the probationary period, respondent would be subject to oversight by a practice monitor, and that failure to cooperate with the practice monitor would violate his probation resulting in the imposition of the stayed portion of his suspension. We accept its recommended sanction for the reasons set forth by the Board in its report and because it is not inconsistent with the range of discipline imposed in similar cases involving conflict of interest. In re Zelloe, 686 A.2d 1034 (D.C. 1996) (ninety-day suspension for failure to disclose personal interest and dishonesty in connection with a loan transaction); In re Shay, 756 A.2d 465 (D.C.2000) (ninety-day suspension for multiple violations including dishonesty and conflict of interest); In re Hager, 812 A.2d 904 (D.C.2002) (one-year suspension for conflict of interest and dishonesty in connection with failure to disclose settlement-fee arrangement to clients). Further, Bar Counsel has informed the court that she takes no exception to the Board's report and recommendation, and respondent has not filed any exceptions to the Board's report and recommendation. Thus, we give heightened deference to the Board's recommendation. See D.C. Bar R. XI, § 9(g)(2); In re Hitselberger, 761 A.2d 27 (D.C.2000); In re Delaney, 697 A.2d 1212, 1214 (D.C.1997). Accordingly, it is ORDERED that Dorsey Evans is suspended from the practice of law in the District of Columbia for a period of six months with reinstatement conditioned upon his completion of six hours of continuing legal education courses in the area of probate law and legal ethics. We direct respondent's attention to the requirements of D.C. Bar R. XI, § 14(g), and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16(c). It is

FURTHER ORDERED that the final ninety days of respondent's suspension be stayed on the condition that he agree to be placed on probation for a period of one year, during which time respondent shall be subject to oversight by a practice monitor. Failure to cooperate with the practice monitor shall violate his probation resulting in the imposition of the stayed portion of his suspension.

So ordered.

APPENDIX

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This matter comes to the Board on Professional Responsibility (the "Board") from Hearing Committee Eight ("Committee"). It arises out of Respondent's representation of Carolyn Robinson in connection with a real estate loan. The story begins when Ms. Robinson decided to take out a loan with her house as security. Her mortgage broker referred her to a title company owned and operated by Respondent. Sometime thereafter, it became evident that Ms. Robinson did not have title to the property, which was deeded to her deceased mother-in-law, Zaidee Robinson. Respondent, in his capacity as an attorney, assisted Ms. Robinson in opening an estate for Zaidee, for which she was appointed as a co-personal representative with her son. After a number of problems with the estate were discovered, the Probate Court removed Ms. Robinson as personal representative and referred the Respondent to Bar Counsel.

Bar Counsel charged Respondent with violating six D.C. Rules of Professional Conduct: Rule 1.1(a) by failing to provide competent representation; Rule 1.1(b) by failing to serve his client with the skill and care generally required; Rule 1.7(b)(4) by representing a client in a manner where his judgment might be adversely affected by his own financial interests; Rule 3.3(a)(2) by counseling or assisting a client to engage in criminal or fraudulent conduct; Rule 8.4(c) by engaging in dishonest conduct, and; Rule 8.4(d) by engaging in conduct that seriously interfered with the administration of justice. The Committee found that Respondent's conduct violated Rules 1.1(a), 1.1(b), 1.7(b)(4) and 8.4(d) and recommended a sixty-day suspension with readmission conditioned on successful completion of continuing education courses on ethics and probate law.

Respondent excepted to the Committee's findings of fact and conclusions of law, asking that the Board overturn them "in their entirety." Bar Counsel took no exception to the Committee's report and recommendation and filed a brief in support thereof. Upon review, we sustain the Committee's finding that Respondent violated Rules 1.1(a), 1.1(b), 1.7(b)(4) and 8.4(d). For the reasons explained below, we do not agree with the Committee that a sixty-day suspension with reinstatement conditioned on completion of continuing education classes is a sufficient sanction. We find that Respondent's misconduct demonstrates a need for assistance in assuring that his future conduct meets the ethical requirements of our profession. Accordingly, we recommend that the Respondent be suspended for six months. We further recommend that ninety days of this suspension be stayed in favor of a one-year probationary period during which time Respondent will be required to work with a practice monitor. We also recommend that Respondent be required to take six hours of continuing legal education courses.

I. Procedural History

Bar Counsel served the Respondent with the Specification of Charges on January 8, 2004. Respondent filed an answer on January 28, 2004. Bar Counsel filed "Bar Counsel's List of Exhibits" ("BX") marked as A through G, and 1 through 27 and Respondent filed "Respondent's List of Exhibits" ("RX"), marked as 1 through 3. The parties also filed a joint stipulation of certain facts ("JSF"). The Committee held a prehearing on February 10, 2004,¹ and heard evidence and argument on February 24 and March 2, 2004.² Bar Counsel called five witnesses: Rene Fox (expert on probate matters), Lane Potkin (expert on real estate matters), Donald Horton (former Deputy Register of Wills) and attorney Benny Kass (court-appointed successor personal representative of Zaidee Robinson's estate). Respondent, who appeared pro se, cross-examined Bar Counsel's witnesses and testified under oath on his own behalf, but did not present any other witnesses.

At the conclusion of the hearing, the Committee made a preliminary, non-binding determination that Respondent had violated at least one Rule of Professional Conduct, and each party made a submission on aggravation and mitigation. After the hearing, Bar Counsel submitted proposed findings of fact and conclusions of law, Respondent filed a response thereto and Bar Counsel filed a brief in reply.

The Committee issued its Report and Recommendation on April 30, 2004. As noted above, only Respondent excepted thereto. The Board heard oral argument on October 7, 2004.

II. Findings of Fact

Although Respondent suggests that the Committee's findings be overturned in their entirety, he does not specifically challenge any of the Committee's factual findings. Hearing Committee findings of fact will be affirmed when supported by "substantial evidence on the record, viewed as a whole." Board R. 13.7; In re Micheel, 610 A.2d 231, 234 (D.C.1992). We owe no deference, however, to the Hearing Committee's determination of "ultimate facts," such as whether the facts establish a violation of a Rule, and other conclusions of law. Micheel, 610 A.2d at 234; In re Appler, 669 A.2d 731, 739 (D.C.1995).

In this matter, we find the Committee's findings of fact, with one exception noted below, to be amply supported by the record. We have adopted many of them, but have eliminated certain other findings that are unnecessary to the analysis and outcome of this matter. Pursuant to Board Rule 13.7, we have made some additional findings to provide context and...