In re Harper, 99-BG-1359.

• Decision Date: 08 November 2001
• Docket Number: No. 99-BG-1359.,99-BG-1359.
• Citation: 785 A.2d 311
• Parties: In re T. Clarence HARPER, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

785 A.2d 311

In re T. Clarence HARPER, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals.

No. 99-BG-1359.

District of Columbia Court of Appeals.

Argued October 22, 2001.

Decided November 8, 2001.

Melvin G. Bergman, Beltsville, MD, for respondent.

Julia L. Porter, Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel, and Michael S. Frisch, Senior Assistant Bar Counsel at the time the briefs were filed, were on the brief, for the Office of Bar Counsel.

Before STEADMAN and FARRELL, Associate Judges, and PRYOR, Senior Judge.

FARRELL, Associate Judge:

The Board on Professional Responsibility has recommended that respondent be disbarred as reciprocal discipline for his disbarment by the Court of Appeals of Maryland. The "most significant and[, indeed, the] controlling factor" in the Board's recommendation is that respondent took no part in the proceeding before the Board, a fact that we have held restricts the Board's consideration of the propriety of imposing reciprocal discipline. See In re Spann, 711 A.2d 1262, 1265 (D.C.1998). In this court, respondent urges us to excuse his failure to oppose reciprocal disbarment at the Board level as the result of good faith confusion on his part about the process leading to a Board recommendation of reciprocal discipline. And as evidence of the injustice he believes a conclusion that he substantially defaulted his right to oppose that discipline would cause him, he points to the misgivings the Board itself had as to whether disbarment in the District would have been commensurate with his misconduct, even as a reciprocal matter, had he seasonably opposed the discipline.

Notwithstanding these arguments, respondent's failure to contest Bar Counsel's recommendation of reciprocal disbarment to the Board stemmed from his disregard of this court's order explicitly stating the time within which an opposition had to be filed. Nothing in the rules governing reciprocal discipline rendered that notice ambiguous, and our decisions preclude the leniency respondent asks us to adopt for a claimed unintentional but inexcusable bypass of the procedure for opposing reciprocal discipline. Under the standard which the Board correctly followed, "no obvious miscarriage of justice would result in the imposition of identical discipline" for respondent's conduct in Maryland, Spann, 711 A.2d at 1265, and we therefore adopt the Board's recommendation.

I. Background

A.

Respondent was disbarred by Maryland for the unauthorized practice of law and related misconduct.¹ As accurately summarized by the Board, the facts are that in early 1995 respondent agreed to accept cases from two former Maryland attorneys, Fred Kolodner and Burton M. Greenstein, who had practiced law in Baltimore City before being disbarred. Under the terms of the agreement, the wife of Fred Kolodner, a principal in a business enterprise that provided physical therapy and treatment facilities for automobile accident and workers' compensation claimants, began referring the clients and files of the business to respondent. Since respondent was not licensed to practice law in Maryland, in early 1995 he engaged Versteal Kemp, an attorney who was a member of the Maryland bar, to help with the referred cases. Together they opened the office of Harper & Kemp in Baltimore City. Before the start of their business relationship and throughout its existence, respondent also practiced from an office on Georgia Avenue in the District of Columbia, where he primarily handled personal injury cases. Kemp was primarily a criminal law practitioner.

In May 1995, respondent signed a one-year lease for an office for Harper & Kemp; the lease was extended on a month-to-month basis until the office was closed sometime in 1997. The firm's stationery reflected the fact that respondent was a "Member of the D.C., and Maryland Federal Bars," while Kemp was a "Member of Maryland State and Federal Bars." Respondent signed retainer agreements between the firm's personal injury clients and Harper & Kemp. For some time after the office first opened, he and Kemp alternated in covering the office. After a while, Kemp stopped covering the office and coverage was provided solely by respondent. He established escrow and operating accounts on which both he and Kemp were authorized signators, although all of the deposits and withdrawals associated with the accounts were made by respondent. At the suggestion of Deborah Kolodner, Harper & Kemp employed a person called "Mitchell" to put the case files in order. Mitchell did not use his real name, Joseph Somerville, because he had previously been the subject of considerable bad publicity due to his connection with an attorney who had been disbarred. Somerville worked at Harper & Kemp for a little less than a year. During that time, he worked daily with respondent and saw little of Kemp, who tended to come to the office in the evening and leave notes for Mitchell concerning Kemp's cases.

Respondent came to the attention of the Maryland Bar Counsel when several clients filed complaints against Harper & Kemp concerning the handling of their cases. The first client, Brenda Foster, claimed that respondent solicited the representation of Brenda Foster on behalf of her minor daughter, Linnea Anderson, without the supervision of Kemp. The second client, Frances Bonner, claimed that respondent agreed to a settlement in her case without obtaining her prior authorization or informing her that she was free to reject the settlement check that respondent tendered. A third client, Frances Bonner's daughter, Kimberly Bonner, alleged that respondent failed to act with reasonable promptness and failed to keep her informed about her case.

Respondent acknowledged to the Maryland Bar Counsel's investigator that he dealt with most of the clients in Baltimore, that most of the files in the Baltimore office were his cases, and that Kemp had nothing to do with them. The bank records of Harper & Kemp show that between May 1995 and September 1996 respondent drew fifty-five checks totaling $110,353.93 that were payable to clients as distribution of settlement proceeds from the escrow account. He also drew $82,241.97 in checks on the escrow account payable to cash, to himself, or to Harper & Kemp.

The Attorney Grievance Commission of Maryland filed petitions for disciplinary action against respondent and Kemp. After a joint trial in the Circuit Court, respondent was found to have violated five Maryland disciplinary rules: Rule 1.3 for his failure to act with reasonable diligence and promptness in representing a client; Rule 1.4 for his failure to keep his client reasonably informed; section 10-601 of the Maryland Code for practicing law without a license, a misdemeanor under Maryland law; Rule 8.4(b) for committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer; and Rule 8.4(d) for engaging in conduct prejudicial to the administration of justice.

Besides the violations found by the Circuit Court, the Court of Appeals agreed with Maryland Bar Counsel that respondent had violated Rule 16-609 by repeatedly drawing checks on an escrow account made payable to "cash," Rule 7.5 by soliciting employment via the false impression that he was licensed in Maryland, and Rule 7.1 by materially misleading a client as to his ability to settle her claim. Concerning the primary charge of unauthorized practice of law, the Court recognized that respondent was permitted to practice law in the District of Columbia and had associated himself with an attorney (Kemp) who was authorized to practice in Maryland.² Nonetheless, the Court determined that his unauthorized practice of law in Maryland required disbarment, because it

was deliberate and persistent. He set up an office for the general practice of law in Baltimore City in order to wring whatever value he could out of the inventory of pending cases of a disbarred lawyer who had practiced in Baltimore City. There is no reasonable basis on which Harper could have thought that this conduct was lawful. His motive in creating Harper & Kemp was greed. There is no mitigation. Other unadmitted attorneys must be deterred from attempting to practice law in violation of the statutory prohibition against unauthorized practice.³

B.

On October 21, 1999, Bar Counsel in the District of Columbia informed this court of the Maryland disbarment order. The next day, the Board informed respondent by letter of this jurisdiction's rules governing reciprocal discipline, in particular Board Rule 8.2 which affords an attorney "an opportunity to respond to Bar Counsel's statement as to whether reciprocal discipline should be imposed." On October 26, this court issued the standard order in such circumstances, with a copy to respondent, informing him of receipt of the Maryland disbarment order and suspending him from practice here pending final disposition of the same matter in this jurisdiction. The order directed Bar Counsel to inform the Board within 30 days "of his position regarding reciprocal discipline," and explained that "[t]hereafter, respondent shall show cause before the Board on Professional Responsibility, if cause there be, within 10 days why identical, greater or lesser discipline should not be imposed in the District of Columbia."

On November 23, 1999, Bar Counsel recommended to the Board in writing that reciprocal discipline be imposed. Citing the presumption of D.C. Bar R. XI, § 11(c) in favor of reciprocal discipline, Bar Counsel asserted that none of the enumerated exceptions applied and that disbarment fell within the range of sanctions that could be imposed as original discipline here, because "[r]espondent's misconduct involve[d] an extensive pattern and practice of unauthorized law over a two-year period, violations of record-keeping requirements relating to the operation of his escrow account, and improper solicitation of...