In re Johnson
| Decision Date | 26 May 2022 |
| Docket Number | 19-BG-240 |
| Parties | IN RE Johnnie L. JOHNSON, III, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 235614) |
| Court | D.C. Court of Appeals |
Johnnie L. Johnson, III, pro se.
Hamilton P. Fox, III, Disciplinary Counsel, with whom Julia L. Porter, Deputy Disciplinary Counsel, and Myles V. Lynk, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of the Disciplinary Counsel.
Before Easterly and McLeese, Associate Judges, and Washington, Senior Judge.
The present disciplinary matter comes to us from the Board of Professional Responsibility's ("the Board") review of an Ad Hoc Committee ("the Committee") Report and Recommendation that respondent Johnnie L. Johnson, III be disbarred for flagrant dishonesty. The issues on review are whether the Board's factual findings, ultimately based on the Committee's, are supported by substantial evidence, and whether the recommended sanction of disbarment is consistent and warranted. For the reasons below, we adopt the Board's factual findings as supported by substantial evidence and concur that disbarment is the appropriate remedy.
H.G., a former D.C. Public Schools bus driver, unsuccessfully pursued an appeal of termination of his workers’ compensation benefits in June 2012. Soon afterwards, in the same month, he met respondent Johnnie L. Johnson, III and engaged him as an attorney to represent him in continuing his workers’ compensation appeal. Johnson represented H.G. from June 2012 until August 2015 when H.G. retained new counsel, Harold Levi, to replace Johnson in his ongoing workers’ compensation case.
In June 2012, Johnson entered his appearance as counsel for H.G. in the workers’ compensation appeal. In July 2012, he filed a two-page application for a formal hearing that H.G. had filled out by hand and to which Johnson added two type-written sentences. In September 2012, Johnson propounded seemingly boilerplate discovery requests. He also filed a short brief in opposition to the District's September 2012 motion to dismiss H.G.’s claim based on a failure to comply with a scheduling order. In November 2012, Johnson attended a forty-five to sixty-minute hearing where H.G. testified; however, H.G. stated at the later disciplinary hearing that Johnson did not meet with him ahead of time or prepare him for this workers’ compensation hearing. While awaiting a decision from the administrative law judge ("ALJ"), Johnson prepared a half-page letter to an insurer who had notified H.G. that it would terminate his accident insurance, explaining the pending workers’ compensation appeal and claiming the District was responsible for the premiums.
In June 2014, the ALJ granted H.G.’s claims for medical treatment and wage loss benefits. In an application for review of that decision, Johnson claimed that the ALJ erred in failing to award attorney's fees and cited to a provision of D.C. Code § 1-623.27(b) (2016 Repl.) that limits the amount of and manner in which one may obtain attorney's fees in a workers’ compensation claim (no more than twenty percent of the total awarded to the client, only after ALJ approval, and only from the D.C. government). In July 2014, the day before filing that application, Johnson received a check for $58,050.63 payable to H.G. Four days later, Johnson called H.G. to inform him of receiving the check and to make arrangements to meet two days later at a Wells Fargo bank branch in Maryland.
In July 2014, the District filed an application for review of the decision granting H.G. benefits, as well as an opposition to Johnson's application for review in order to obtain attorney's fees. Johnson did not respond to the District's application for review. Pending review of both applications – Johnson's concerning attorney's fees and the District's – Johnson sent a letter to the administrator for the District's workers’ compensation system requesting a lien on payments to H.G., among other claimants that Johnson represented, without disclosing that he had already received one-third of H.G.’s award or telling H.G. that he sought the lien. Johnson's application for review concerning attorney's fees was denied and the District's application was granted, resulting in H.G.’s claim being remanded. Johnson filed an appeal of the remand order but failed to respond to this court's show cause order for why a petition for review of a non-final order should not be dismissed, resulting in dismissal of that appeal. In July 2015, the ALJ issued a compensation order on remand reinstating H.G.’s benefits without further hearing or additional briefing.
Before resolution of his workers’ compensation appeal, H.G. filed a request for fee arbitration and a complaint against Johnson with the D.C. Bar. After receiving the ALJ's compensation order, H.G. wrote to the ALJ in July 2015 requesting that Johnson be released from representing him and attached Johnson's memorandum memorializing the one-third fee that he received in July 2014. In October 2015, the ALJ issued an order to Johnson to show cause why he should not be referred to Disciplinary Counsel for taking a fee in excess and violation of D.C. Code. Johnson replied to this order and claimed that he believed the payment was approved and that it also represented other legal work he had done for H.G. The ALJ notified Disciplinary Counsel in March 2016, and reported that Johnson had taken a fee of $20,350.21 in excess and violation of D.C. Code. This reported amount was based on a document provided to the ALJ from H.G. and included a $1,000 error in the total.
After H.G.’s workers’ compensation appeal had been resolved on remand, his new counsel, Mr. Levi, was preparing his petition for attorney's fees and contacted Johnson in July 2016. Mr. Levi asked Johnson how much of a fee Johnson had received from H.G. and said that he understood it to be one-third. Johnson avoided answering directly Mr. Levi's questions and instead denied having taken $20,350.21 or a thirty-five percent fee (apparently a reference to the erroneous amount in the ALJ's referral to Disciplinary Counsel). He also gave details about the scope and nature of his representation of H.G. that were inaccurate.
Also in July 2016, Johnson filed a fee petition seeking $40,324.66 in attorney's fees. This petition failed to disclose the $19,350.21 that he had already received from the check in July 2014. Nor did the petition disclose that it was recreated from memory after the fact. In truth, Johnson had no time records from his representation of H.G. Many of the entries appeared exaggerated given the type of work performed or the amount of time it was documented to have actually taken. For example, Johnson claimed two hours (at $500 per hour) for his initial meeting with H.G. in June 2012, which, in fact, took less than an hour. Finally, some entries in his fee petition covered work for services performed after H.G. had discharged Johnson, such as three hours preparing his response to the ALJ's October 2015 order to show cause why he should not be referred to Disciplinary Counsel. H.G. and the District objected to Johnson's fee petition. The ALJ denied the fee petition in February 2017.
From May to October 2016, Disciplinary Counsel requested Johnson's cooperation to answer questions and provide documents, but his conduct was disobliging. For example, he claimed the check for $58,050.63 was not an award of H.G.’s benefits, and he failed to produce certain requested documents, such as financial records. Johnson's conduct was not any more helpful at the disciplinary hearing. For example, he initially testified that he did not receive any money from H.G. at all. He later testified that H.G. had given him money, but that it was for less than $19,000 and not for attorney's fees.
The Committee made the above factual findings and recommended disbarment on the ground of flagrant dishonesty. The Board adopted the Committee's report and recommendation as supported by substantial evidence. The present review followed.
" In re Cleaver-Bascombe I , 892 A.2d 396, 401-02 (D.C. 2006) (citations omitted); see also D.C. Bar R. XI, § 9(h)(1) ().
Because the reports and recommendations below are voluminous and meticulously detailed, we will not cite to every factual example, exhibit, excerpt of the transcript, and so forth. Rather, we conclude that substantial evidence of each charged violation is supported by a handful of notable examples upon which we will...
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