In re Hopkins, 95-BG-845.

• Decision Date: 31 May 1996
• Docket Number: No. 95-BG-845.,95-BG-845.
• Citation: 677 A.2d 55
• Parties: In re Brenda L. HOPKINS, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

677 A.2d 55

In re Brenda L. HOPKINS, Respondent.

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

No. 95-BG-845.

District of Columbia Court of Appeals.

Argued March 12, 1996.

Decided May 31, 1996.

Leonard H. Becker, Bar Counsel, with whom Wallace E. Shipp, Jr. was on the brief, Washington, for the Office of Bar Counsel.

Elizabeth J. Branda, Washington, for the Board on Professional Responsibility.

Brenda L. Hopkins, pro se.

Before FERREN, STEADMAN and KING, Associate Judges.

STEADMAN Associate Judge:

The principal issue to be determined in this disciplinary matter is the scope of DR 1-102(A)(5) of the former Code of Professional Responsibility, which provided that a "lawyer shall not . . . engage in conduct that is prejudicial to the administration of justice."¹ The Board on Professional Responsibility (the Board) concluded that respondent's conduct did not violate that provision and dismissed the petition against respondent. Bar Counsel took an exception to this court. Interpreting our precedents relating to former DR 1-102(A)(5) somewhat differently than the Board did, we hold that respondent violated that provision as charged. We therefore vacate the Board's order of dismissal and remand the matter for further proceedings.

I.

Irene Akins died intestate.² Her son, Robert Akins, Jr., was appointed personal representative of the estate, and retained respondent as his attorney. The only other beneficiary of the estate was Robert Akins, Sr. By statute, Akins, Sr. was entitled to receive a $10,000 family allowance plus a onethird share of the net proceeds of the estate, while Akins, Jr. was entitled to a two-thirds share of the net proceeds of the estate. See D.C.Code §§ 19-101, 19-301 et seq. (1989 Repl.).

The estate's major asset was a house, which Akins, Jr. intended to sell. To do so, he was required by statute either to increase the bond he had posted as personal representative by an amount equal to the fair market value of the property, or to obtain a waiver from Akins, Sr. of the bond requirement. See D.C.Code §§ 20-502(a), 20-742(b) (1989 Repl.). Respondent wrote to attorney Q. Russell Hatchl, who had been retained by Akins, Sr.. to represent him in the probate matter, requesting Akins, Sr.'s consent to the sale of the decedent's home and waiver of the bond requirement. Hatchl informed respondent that Akins, Sr. would not provide the consent and waiver unless respondent gave written assurance that she would ensure proper disbursement of the sale proceeds. Hatchl suggested that respondent be a required cosignatory on the account established to hold the proceeds. Respondent agreed, and wrote to Hatchl,

You may be assured that all proceeds from the sale shall be under joint control. Any estate account established will require both my signature and that of the personal representative. Assuming this will satisfy your client, please forward the consent to the sale at your earliest convenience.

Akins, Sr. subsequently consented to the sale of the house and waived the bond requirement.

In October 1987, after the house was sold, respondent and her client attempted to open a joint account for the sale proceeds, which amounted to approximately $46,000. The bank chosen by respondent's client would not permit a joint account arrangement, so they opened an account in the estate's name, with Akins, Jr. as the only required signatory. Respondent retained the account checkbook and arranged for the account statements to be sent to her. She and Akins, Jr. agreed that they would transfer the funds to a joint account in another bank later. Despite efforts by respondent to have Akins, Jr. fulfil the agreement, no joint account was ever established. Respondent did not advise Hatchl or Akins, Sr. about the failure to establish a joint account.

Upon receiving an account statement in January 1988, respondent discovered that her client had been withdrawing funds from the estate account without her knowledge or permission. Respondent confronted her client about the withdrawals, and he instructed her not to inform his father about them. In December 1987, Hatchl had written to respondent three times to inquire about Akins, Jr.'s apparent new wealth; respondent did not reply. Akins, Jr. continued to make withdrawals, and eventually stopped returning respondent's telephone calls. In July 1988, respondent consulted the chairman of the probate section of the D.C. Bar, who advised her that, if she was unable to convince her client to rectify the situation, she could contact the Register of Wills in the Probate Division of Superior Court about the matter and seek a court order to freeze the account.

Respondent inquired at the bank where the estate account had been established about freezing the account, and she was told that the account could not be frozen without a court order. Respondent did not seek a court order to freeze the account. Instead, in August 1988, after learning that the estate account balance had fallen to $25,325, respondent met with the Register of Wills. According to respondent, she informed the Register of the situation, and said that she was afraid that her client "was going to embark on some illegal conduct if the withdrawals of this account continued." Respondent was under the impression that the Register planned to advise the probate judge of the matter and request an immediate hearing for the removal of Akins, Jr. as personal representative.³ Despite respondent's impression that the Register would request an immediate hearing, the months of September, October, and November 1988 passed by without any sign of a hearing, and respondent received account statements indicating that Akins, Jr. was continuing to withdraw funds from the account at the rate of thousands of dollars per month. The account balance was $23,156 at the end of August, $20,868 at the end of September, $16,213 at the end of October, and $9,393 at the end of November. Nevertheless, respondent took no further action.

Finally, in December 1988, at the initiation of the Register,⁴ a show cause hearing was scheduled on why Akins, Jr. should not be removed as the estate's personal representative. Akins, Jr. did not appear at the January 1989 hearing, where it was revealed that the estate balance had fallen to zero. The court removed Akins, Jr. as personal representative, and subsequently referred the account to an auditor-master. The auditormaster's report concluded that, in addition to Akins, Sr.'s one-third share of the net proceeds of the estate, Akins, Sr. was due $14,-775 to cover the family allowance and reimburse him for administrative expenses.

Akins, Sr. brought a civil action against Akins, Jr., respondent, and respondent's law partner, alleging, inter alia, breach of contract with regard to the assurance about the joint account, conversion on the part of Akins, Jr., and, in essence, legal malpractice on the part of respondent. In April 1991, the trial court entered judgment against all defendants, jointly and severally, for an amount equal to the $10,000 family allowance, $4,775 in administrative costs, and $16,368 (which represented Akins, Sr.'s one-third share of what the net estate proceeds would be but for Akins, Jr.'s malfeasance), plus interest. Respondent and her partner appealed.⁵

In May 1993, this court decided respondent's appeal in the civil case, reversing the judgment against her and her partner. Hopkins v. Akins, 637 A.2d 424 (D.C.1993). We held that when respondent gave Hatchl assurance that a joint account would be established, she acted solely as an employee of Akins, Jr. rather than in her individual capacity, and therefore she was not liable on the agreement. Id. at 427. We further held that respondent could not be liable to Akins, Sr. for legal malpractice because she represented Akins, Jr. rather than the estate or Akins, Sr. Id. at 428-30.

Meanwhile, in September 1992, Bar Counsel instituted formal disciplinary proceedings against respondent, alleging that her failure to act while her client depleted the estate account violated five disciplinary rules of the former Code of Professional Responsibility. Bar Counsel subsequently withdrew three of the charges against respondent, leaving in place charges that respondent violated two rules of conduct:

DR 1-102(A)(5): "A lawyer shall not . . engage in conduct that is prejudicial to the administration of justice," and DR 2-110(B)(2): "A lawyer ... shall withdraw from employment, if ... she knows or it is obvious that her continued employment will result in violation of a Disciplinary Rule."

The Hearing Committee concluded that respondent had violated both rules, and recommended a public censure. However, the Board dismissed all charges, concluding that respondent's conduct did not violate DR 1-102(A)(5), and therefore that respondent's failure to withdraw did not violate DR 2— 110(B)(2).⁶ Bar Counsel filed an exception to the Board's order of dismissal pursuant to D.C. Bar R. XI § 9(t), which provides that when the Board dismisses a petition, "the attorney or Bar Counsel, or both, may file with the Court exceptions to the Board's decision." Under D.C. Bar R. XI § 9(g)(1), upon the filing of such exception, "the Court shall schedule the matter for consideration in accordance with applicable court procedures."

II.

In concluding that respondent's conduct was not "prejudicial to the administration of justice," the Board noted that "violations of DR 1-102(A)(5) have almost always involved two elements: first, knowledge on the part of the attorney of the court procedures that he or she failed to obey, and second, a resultant interference with the judicial decision-making process." The Board appears to have read our prior cases as requiring an attorney's conduct to satisfy both of these "elements" in order to violate DR 1-102(A)(5). Further, the Board interpreted the second "element" to mean that the attorney's conduct must "cause the court to...