In re Karr

• Decision Date: 15 October 1998
• Docket Number: No. 95-BG-562., No. 94-BG-992
• Citation: 722 A.2d 16
• Parties: In re John KARR, Respondent. A Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

722 A.2d 16

In re John KARR, Respondent.

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

Nos. 94-BG-992, 95-BG-562.

District of Columbia Court of Appeals.

Argued November 20, 1996.

Decided October 15, 1998.

Ralph J. Temple, Washington, DC, for respondent.

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

Before WAGNER, Chief Judge, RUIZ and REID, Associate Judges.

RUIZ, Associate Judge:

We are presented with the recommendations of the Board on Professional Responsibility in two consolidated cases against respondent, John W. Karr. In the first case, referred to as Karr I, the Board on Professional Responsibility adopted the Hearing Committee's findings in four joined disciplinary actions, involving four different clients, that Karr violated various disciplinary rules: DR 6-101(A)(3) and Rule 1.3(c) (client neglect and delay in representing Coopers and Stroup); DR 9-103(B)(4) (failure to promptly return client files to Cooper); Rules 1.2(c) and 1.4(a) (failure to consult with and keep Stroup reasonably informed); and two violations of Rule 8.4(d) (failure to cooperate with Bar Counsel in the Benson and Walters proceedings). The Board recommends that Karr be suspended for thirty days, rejecting the recommendation of the Hearing Committee that the suspension be stayed for one year with a practice monitor.¹ We conclude that Karr committed five of the seven violations of the professional rules found by the Board. Thus, we remand the disciplinary proceedings that comprise Karr I to the Board for reconsideration of the proposed thirty-day suspension sanction in light of our conclusion.

The second case, Karr II, involves DR 2-101(A), (B) and (C), DR 2-10(C), and Rules 7.5(a) and (d), which prohibit the use of a non-partner's name in a law firm name and letterhead. The Board decided that Karr violated these disciplinary rules by including the name "McLain" in his firm's name and letterhead when William G. McLain was not Karr's "full-fledged" partner. The Board rejected the Hearing Committee's recommendation that there be no sanction beyond that imposed in Karr I, and instead recommends public censure for this violation. We disagree that Bar Counsel has proven, by clear and convincing evidence, that Karr's use of McLain's name violated the rules and therefore do not adopt the Board's recommendation of public censure.

I.

At the outset, we note that in reviewing disciplinary cases we accept the findings of fact made by the Board on Professional Responsibility unless they are unsupported by substantial evidence of record. See D.C. Bar R. XI, § 9(g)(1) (1995); In re McLain, 671 A.2d 951, 953 (D.C.1996) (citing D.C. Bar R. XI, § 9(g)(1) (other citations omitted)). Similarly, the Board defers to the Hearing Committee's findings of fact. See D.C. Bar R. XI, § 4(e)(4) and (7); In re Temple, 629 A.2d 1203, 1208 (D.C.1993). We "adopt the recommended disposition of the Board 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(g)(1) (1995); see McLain, supra, 671 A.2d at 954

(citing D.C. Bar R. XI, § 9(g)(1)). Further, it is Bar Counsel's burden to establish the evidence of a charge of a disciplinary violation by clear and convincing evidence. See Board Rules 11.4; In re Benjamin, 698 A.2d 434, 439 (D.C.1997).

Karr raises numerous issues on exception to the Report of the Board on Professional Responsibility. Due to the multifarious facts involved in the several disciplinary matters, we will discuss the charged violations in the context of the facts of each disciplinary case.

II.

Karr I — The Client-related Violations

No. 94-BG-992

A. COOPER CASE

Police Matter.

Karr successfully represented Robert F. Cooper, Jr. in his efforts to be reinstated into the Metropolitan Police Department. Shortly after the court ordered that Cooper should be reinstated, Cooper tested positive for marijuana during a reinstatement physical examination. With Karr still representing him, Cooper testified before a police adverse action panel that he had not smoked marijuana. After the hearing, however, Cooper informed Karr that he had, in fact, smoked marijuana. Following Cooper's disclosure, Karr did not file proposed findings of fact and conclusions of law with the panel. The panel found Cooper guilty of smoking marijuana and Cooper was dismissed from the Police Department. Karr subsequently filed an appeal before the Office of Employee Appeals requesting de novo review.

Cooper testified before the Hearing Committee that he "was told something" by Karr and that he recalled making an attempt to discuss the tactical decision not to file a post-hearing submission, but that he was never given "anything substantive that made sense to him." Karr testified that he had informed his client of his tactical decision not to file a post-hearing submission.²

Karr contends that the Board erroneously concluded that he neglected his client's interests, in violation of DR 6-101(A)(3) of the Code of Professional Responsibility, by not filing proposed findings of fact and conclusions of law and by failing to communicate with his client. Karr testified before the Hearing Committee that his failure to file was not a violation of the rule because his decision not to file proposed findings of fact was within the wide range of reasonable professional judgment and that, in this case, because Cooper had lied to the police panel, any truthful proposed findings of fact that Karr could have filed would have been detrimental to his client's interest. The Hearing Committee and the Board did not credit Karr's testimony because Karr had sought and received an extension of time to file proposed findings. The Board also disagreed with Karr's strategy of not filing a post-hearing brief for two reasons. First, it found that a lawyer's refraining from closing argument out of fear of flagging his client's perjury to the fact-finder constituted abandonment of a client and that such abandonment was unethical. Second, the Board disagreed with Karr's trial strategy arguing that if arguments of law could ethically be presented on appeal, as they were, there was no reason not to present them in the first instance to the police panel.³

Based on the record, we conclude that Bar Counsel did not meet his burden of proof to establish, by clear and convincing evidence, that Karr's conduct demonstrates "neglect, i.e., a conscious disregard for the responsibility he owed to [Cooper] and a consistent failure to carry out his obligations to [him]." In re Foster, 581 A.2d 389, 391 (D.C.1990). It was not clearly established that Karr's failure to file proposed findings of fact was caused by neglect, rather than by consideration of an ethical dilemma posed by Cooper's perjury before the police panel. See Rule 1.2(e) ("A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent."); Rule 1.6(a) ("Except when permitted under paragraph (c) or (d), a lawyer shall not knowingly: 1) Reveal a confidence or secret of the lawyer's client.").⁴ Karr's subsequent filing of an appeal before the Office of Employee Appeals attests to the fact that he continued efforts on Cooper's behalf and did not abandon him. Although we do not equate "neglect" sufficient to constitute a disciplinary violation with constitutional ineffectiveness, we are similarly mindful in this context not to "second guess" the tactical decisions of counsel. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

; In re Thorup, 432 A.2d 1221, 1226 (D.C.1981). Further, although Cooper was clearly frustrated in his attempts to communicate with Karr, Cooper's testimony does not completely contradict Karr's testimony that there was some communication concerning the tactical decision post-hearing during what was admittedly a tense period in the attorney-client relationship. Accordingly, we disagree with the Board's determination that Karr's "conduct constitutes a straight-forward example of neglect of a client's interests, in violation of DR 6-101(A)(3)."

Real Estate Files.

Cooper had also retained Karr to represent him in litigation involving a suit to partition real estate. After Cooper retained new counsel in the matter, on July 10, 1989, the new counsel informed Karr that he had been retained by Cooper to represent him in both the police and the real estate matters.⁵ Cooper's new counsel also wrote Karr the next day, July 11, 1989, requesting Karr to send all files relating to both Cooper matters, and, when he did not receive the files, Cooper's new counsel made numerous attempts to contact Karr, to no avail. Karr testified that he knew he had been fired by Cooper, conceded that he had promised the files to new counsel, and stated that providing them to Cooper two months later was "excessive," and that he was "shocked" at the lapse of time.

The Hearing Committee found there was clear and convincing evidence that Karr failed to return Cooper's files promptly when he was requested to do so, thereby violating DR 9-103(B)(4). The Board agrees. Karr argues that the Board failed to consider his testimony that, pursuant to Karr's invitation, Cooper came to his office and obtained the files that had been requested by his new attorney. Citing In re Foster, 581 A.2d 389 (D.C.1990), Karr argues that once Cooper picked up the files, Karr no longer had an obligation to provide them a second time to new counsel, absent a showing that all relevant files had not been provided to Cooper.

Karr's reliance on Foster is misplaced. In Foster, the court found that the record was insufficient to sustain a finding, by clear and convincing evidence, that respondent did not mail the client's files when he said he did, eight days after his client's telephone message...