In re Johnson

• Decision Date: 04 May 2017
• Docket Number: No. 16–BG–777,16–BG–777
• Parties: IN RE Laurence F. JOHNSON, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 934398)
• Court: D.C. Court of Appeals

158 A.3d 913

IN RE Laurence F. JOHNSON, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 934398)

No. 16–BG–777

District of Columbia Court of Appeals.

Argued April 6, 2017

Decided May 4, 2017

Justin M. Flint for respondent.

William R. Ross, Assistant Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel, Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief, for the Office of Disciplinary Counsel.

Before Beckwith and Easterly, Associate Judges, and Steadman, Senior Judge.

Steadman, Senior Judge:

Respondent, Laurence F. Johnson, was charged by Disciplinary Counsel with multiple violations of the Maryland Lawyers' Rules of Professional Conduct (MLRPC).¹ Respondent is an experienced immigration attorney and the violations in question stem from two separate immigration matters. On appeal, respondent claims that the Board on Professional Responsibility (1) misapplied D.C. Bar Rule XI, § 11 (c) in recommending independent discipline in a matter for which respondent had already been disciplined by the Attorney Grievance Commission of Maryland (AGCM), and (2) recommended an unwarranted sanction for his misconduct, which was greater than that recommended by the Ad Hoc Hearing Committee. We accept the Board's recommendation.

I. Facts and Proceedings

The first matter involved respondent's representation of Carlina Seminiano. Respondent entered into a retainer agreement with Ms. Seminiano in April 2001 for the purpose of helping her obtain legal permanent residence in the United States, a process which included labor certification. Ms. Seminiano paid respondent approximately $2000 upon signing the retainer agreement. Her delayed labor certification was re-opened in August 2007 and respondent failed to meet a filing deadline, essential to the labor certification, in November 2007. On February 25, 2008, respondent sent a letter to Ms. Seminiano and her employer indicating that her labor certification application was closed and offered to start a new application "at a large discount." Respondent did not return the $2000 to Ms. Seminiano until June 2012, after an investigation into respondent's conduct had begun.

The second matter involved respondent's representation of Secundo Jacinto Jerez Minchala after he was ordered removed from the United States in 2011. Mr. Minchala retained respondent's services to appeal from this removal order, which had a filing deadline of June 2, 2011, and paid respondent a total of $2060 through various monthly payments between May and October 2011. Respondent never filed the appeal. Respondent also deposited the advanced legal fees into his office's operating account without informed written consent from Mr. Minchala.

Respondent wrote Mr. Minchala a letter on June 23, 2011, intending to terminate his representation. Despite this letter, respondent's office continued to bill Mr. Minchala, and respondent did not inform Mr. Minchala that he failed to file an appeal until February 28, 2012, at which time respondent also refunded Mr. Minchala $2000. Once Mr. Minchala retained new counsel, respondent refused to provide a letter stating that he failed to file an appeal, believing it would harm his own interests. Respondent refunded the final $60 in March 2014 after the initial Specification of Charges was filed in this case. The AGCM reprimanded respondent for misconduct related to his representation of Mr. Minchala, acknowledging that he violated MLRPC Rules 1.1, 1.3, and 8.4 (d). This jurisdiction's charges went beyond the Maryland reprimand and alleged additional MLRPC violations.

The Ad Hoc Hearing Committee determined that respondent warranted Kersey mitigation for the period of misconduct associated with Ms. Seminiano, but not the misconduct associated with Mr. Minchala.² The Hearing Committee concluded that while representing Ms. Seminiano, respondent violated MLRPC Rules 1.1 (competence) and 1.3 (diligence). While representing Mr. Minchala, the Committee found that respondent violated Rules 1.1, 1.3, 1.4 (keeping the client reasonably informed of the status of the matter), 1.8 (h)(1) (making an agreement with the client prospectively limiting the lawyer's liability to the client for malpractice), 1.15 (a) (holding the client's funds in a separate account), 1.15 (c) (failure to deposit fees into a client trust account), 1.16 (d) (properly protecting the client's interests on termination of the representation), 8.4 (c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4 (d) (conduct that seriously interferes with the administration of justice). Ultimately, the Hearing Committee recommended a suspension of thirty days, with the entire suspension stayed in favor of a two-year period of probation.

Respondent filed a general notice of exceptions to the Hearing Committee Report that indicated he intended to later file detailed exceptions, and Disciplinary Counsel filed a notice of some specific exceptions.

However, subsequently they jointly withdrew all exceptions to the Report and Recommendation of the Ad Hoc Hearing Committee and proceeded on review to the Board on Professional Responsibility without briefing or argument. On review, the Board adopted the Hearing Committee's report except its conclusions as to the recommended length of suspension. Instead, the Board recommended a suspension of ninety days, with sixty days stayed in favor of one year of probation.

II. D.C. Bar Rule XI, § 11 (c)

Respondent first argues that the disciplinary matter related to his actions representing Mr. Minchala should be dismissed because the AGCM has already reprimanded respondent for the misconduct. His argument rests on subsection (c) of D.C. Bar Rule XI, § 11 (Reciprocal Discipline ) that reads as follows:

Reciprocal discipline .... shall not be imposed for sanctions by a disciplining court such as public censure or reprimand that do not include suspension or probation. For sanctions by another disciplining court that do not include suspension or probation, the Court shall order publication of the fact of that discipline by appropriate means in this jurisdiction.

Pursuant to this provision, respondent asserts, the only permissible course of action under our rules relating to the Minchala incident was to publish in the District the fact of the Maryland reprimand.

The Hearing Committee heard this argument and rejected it. Respondent took no exception to this conclusion before the Board but, as already stated, let the Hearing Committee report be submitted to the Board without briefing or argument.³ "We have consistently held that an attorney who fails to present a point to the Board waives that point and cannot be heard to raise it for the first time here." In re Green , 136 A.3d 699, 700 (D.C. 2016) (quoting In re Holdmann , 834 A.2d 887, 889 (D.C. 2003) ). While we re-emphasize that arguments to this court should ordinarily be presented to the Board to ensure proper appellate review, in this case the Board explicitly acknowledged the existence of the issue and concurred with the Hearing Committee's rejection of the argument. In this posture, and to put the question to rest, we have determined to address the tardy argument.

We are in no way persuaded by respondent's argument. Section 11 of D.C. Bar Rule XI sets forth the procedures to be followed where a sanction is to be imposed in the District based upon disciplinary action in another jurisdiction. It does not affect the broad power of Disciplinary Counsel to institute fresh proceedings against an attorney based on the same conduct. See D.C. Bar R. XI, § 6 (a)(2) ("Disciplinary Counsel shall have the power and duty ... [t]o investigate all matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of this Court which may come to the attention of Disciplinary Counsel or the Board from any source whatsoever, where the apparent facts, if true, may warrant discipline."); see also In re Fitzgerald , 982 A.2d 743, 744 (D.C. 2009) (acknowledging the option of the Board on Professional Responsibility to either impose reciprocal discipline or proceed de novo ); In re Greenspan , 910 A.2d 324, 343 (D.C. 2006) (acknowledging that Disciplinary Counsel may elect to proceed with an original disciplinary action, despite the greater burden it must bear in doing so); In re Perrin , 663 A.2d 517, 523 (D.C. 1995) ("[W]e are not prepared to construe Section 11 (c) as requiring us to permit foreign discipline to trump the results of an exhaustive original disciplinary proceeding[ ] here."). While these cases preceded the streamlining of the procedures for dealing with reciprocal discipline introduced by the 2008 amendments of that section, there is no indication of any intent to narrow the long-recognized power to bring an independent proceeding. Thus, Disciplinary Counsel operated well within its authority in proceeding with original discipline in the matter of Mr. Minchala.

III. Recommended Sanction

Respondent also argues that the recommended discipline by the Board was unwarranted, especially given that the Hearing Committee did not recommend a period of active suspension. It is the Board, however, that has the ultimate responsibility to make its recommendation to this court. "This court reviews the Board's legal conclusions de novo ." In re White , 11 A.3d 1226, 1228 (D.C. 2011). We also "retain[ ] the ultimate choice of sanction," In re Scanio , 919 A.2d 1137, 1142 (D.C. 2007) (internal quotation marks omitted), but, by our own rules, we will accept the Board's recommendations "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9 (h)(1). This standard dictates that "if the Board's recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed." In re Scanio , 919...