In re Lattimer

• Citation: 223 A.3d 437
• Decision Date: 16 January 2020
• Docket Number: No. 18-BG-338,18-BG-338
• Parties: IN RE Gregory L. LATTIMER, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration Number 371926)
• Court: D.C. Court of Appeals

223 A.3d 437

IN RE Gregory L. LATTIMER, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration Number 371926)

No. 18-BG-338

District of Columbia Court of Appeals.

Argued November 4, 2019

Decided January 16, 2020

Gregory L. Lattimer, Washington, DC, pro se.

Hamilton P. Fox, III, Disciplinary Counsel, with whom Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, was on the brief, for the Office of Disciplinary Counsel.

Before Easterly and McLeese, Associate Judges, and Okun, Associate Judge of the Superior Court of the District of Columbia.^*

Per Curiam:

In a report consolidating disciplinary cases heard by two Hearing Committees, the Board on Professional Responsibility (the "Board") concluded that respondent, Gregory L. Lattimer, committed multiple violations of the District of Columbia Rule of Professional Conduct 1.4(a) (communication with client) in the course of representing two clients in the District of Columbia, as well as violations of the Virginia Rules of Professional Conduct 1.1 (competence), 1.3(a) (diligence), and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), in the course of representing a third client in Virginia.¹ The Board recommended Mr. Lattimer be suspended for sixty days, with the requirement that Mr. Lattimer pay restitution with interest to the family of one of his clients and provide proof of payment prior to reinstatement. We agree with the Board's conclusions that Mr. Lattimer's conduct violated the District of Columbia and Virginia Rules and adopt the Board's recommendation as to sanction, except that we additionally impose a fitness requirement.

I. Standard of Review

In a disciplinary case, Disciplinary Counsel must establish a rule violation by clear and convincing evidence. In re Tun , 195 A.3d 65, 72 (D.C. 2018). This court accepts the factual findings of the Board "if they are supported by substantial evidence in the record."² In re Howes , 52 A.3d 1, 12 (D.C. 2012) ; see also D.C. Bar R. XI, § 9(h)(1). We review the Board's conclusions of law de novo. In re Saint-Louis , 147 A.3d 1135, 1147 (D.C. 2016).

II. Misconduct

A. District of Columbia Rule 1.4(a)

To comply with District of Columbia Rule 1.4(a), a lawyer must "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Comment two further provides that "[a] client is entitled to whatever information the client wishes about all aspects of the subject matter of the representation unless the client expressly consents not to have certain information passed on" and that "[t]he lawyer must initiate and maintain the consultative and decision-making process if the client does not do so and must ensure that the ongoing process is thorough and complete." Failing to return a client's calls or respond to their questions violates this rule. See In re Bernstein , 707 A.2d 371, 376 (D.C. 1998) (holding an attorney's failure to return his client's telephone calls and promptly answer other requests for information violated Rule 1.4(a) ); In re Dietz , 633 A.2d 850, 850 (D.C. 1993) (same). A failure to communicate with a client when the client is incarcerated and thus has limited access to the outside world is particularly concerning. See, e.g. , In re Askew , 96 A.3d 52, 59 (D.C. 2014) (per curiam); see also In re Fitzgerald , 982 A.2d 743, 751–52 (D.C. 2009). Mr. Lattimer was charged with violating Rule 1.4(a) with respect to two clients, Roderick Strange and Toby Cooper.

1. Roderick Strange

The Hearing Committee, and the Board in turn, made the following findings with respect to Mr. Lattimer's representation of Roderick Strange: Mr. Strange's mother retained Mr. Lattimer to represent her son in his criminal appeal in March 2008. Mr. Lattimer met with Mr. Strange just once in person, at the D.C. Jail, in March. Thereafter, Mr. Strange was transferred to a federal prison in South Carolina. While he was in transit and after he arrived at his destination, Mr. Strange made a number of collect calls to Mr. Lattimer's office. None of his calls was accepted; meanwhile, Mr. Lattimer did not call, write, or visit Mr. Strange. After six months of no contact, Mr. Strange paid for a long distance call to Mr. Lattimer's office in October 2008. A month later, Mr. Lattimer sent Mr. Strange a letter informing him that he had an "outstanding balance" that would need to be paid if Mr. Strange still wanted him to file a brief. That was their final communication. Mr. Lattimer never entered an appearance in the case and never filed any documents with the Court of Appeals, see D.C. App. R. 42(a), so an attorney appointed by the court, Ian Williams, ultimately litigated Mr. Strange's appeal.³

Regarding the actual extent of his contact with Mr. Strange, Mr. Lattimer vaguely asserts that "[t]he facts about communication are at odds," and refers us to his exceptions to the Hearing Committee Report, which he "incorporate[s] as if fully set forth" in his brief. In an appeal to this court, it is Mr. Lattimer's obligation to set forth his argument in his brief, and it is not enough for him to "perfunctor[ily]" "advert[ ]" to issues he raised in a different forum at an earlier stage of the litigation. Comford v. United States , 947 A.2d 1181, 1188 (D.C. 2008) (internal quotation marks omitted). In any event, we reiterate that in disciplinary cases, factfinding and, in particular, credibility determinations are delegated to the Hearing Committee and, if it has taken additional evidence, to the Board. See In re Asher , 772 A.2d 1161, 1172 (D.C. 2001). Our task is to confirm that these findings are supported by substantial evidence. In re Howes , 52 A.3d at 12. The record submitted to the Hearing Committee in this case provides the requisite foundation for the finding Mr. Lattimer had no contact with Mr. Strange for more than six months, despite Mr. Strange's numerous attempts to contact Mr. Lattimer to learn the status of his case.⁴ Mr. Lattimer's assertion that "[t]here was no evidence in the record indicating that information was sought and it was not provided" is unsupported by the record.⁵

Mr. Lattimer argues in the alternative that he had no legal obligation under Rule 1.4(a) to keep Mr. Strange reasonably informed or to comply with reasonable requests for information because Mr. Strange's testimony established that "he had no expectation of receiving information from [Mr. Lattimer]." Mr. Lattimer asserts that Mr. Strange testified that he made a "decision ... in the summer of 2008" and "considered Mr. Williams his attorney and not [Mr. Lattimer]." But this puts words in Mr. Strange's mouth that he did not say. Instead, Mr. Strange explained that he reached out to Mr. Williams because he and his family had been unable to make contact with Mr. Lattimer and, beginning in late summer, Mr. Strange "considered" Mr. Williams to be his lawyer because "he was the one that was doing everything" in Mr. Strange's case. Although Mr. Strange acknowledged he was looking to Mr. Williams for assistance, he never testified that he "decided" Mr. Lattimer, the attorney his mother had retained for him in March, was not his lawyer. To the contrary, the fact that Mr. Strange paid for a long distance call to Mr. Lattimer from prison in October 2008 indicates that Mr. Strange was still looking to Mr. Lattimer to provide him with information about his appeal up until that time.⁶

We conclude that Mr. Lattimer's failure to communicate with Mr. Strange for the six months after he was retained violated District of Columbia Rule 1.4(a). See In re Askew , 96 A.3d at 59 ; In re Fitzgerald , 982 A.2d at 751–52.

2. Toby Cooper

The Hearing Committee, and the Board in turn, made the following findings regarding Mr. Lattimer's representation of Toby Cooper: Ms. Cooper retained Mr. Lattimer on June 18, 2010, to represent her in a federal civil rights lawsuit. Over the next three months (until she terminated his representation), Ms. Cooper had only limited contact with Mr. Lattimer, even though he had led her to believe her case needed to move quickly and even though she reached out to him in different ways, repeatedly. During the month of July, Ms. Cooper sent Mr. Lattimer two packages of case-related documents in the mail,⁷ and then, to get updates on her case, emailed him four times and called him seven times. Mr. Lattimer never called her back. He sent Ms. Cooper one email in early July informing her he had not yet filed a complaint. Later that month he sent Ms. Cooper two more emails—apparently prompted by a concern that Ms. Cooper was criticizing him to colleagues for being non-communicative—in which he defended his approach to client contact. Ms. Cooper again attempted to connect with Mr. Lattimer in August via email and in September via phone, but without success. On September 22, 2010, Ms. Cooper emailed Mr. Lattimer to discharge him as her attorney and to request a refund of her retainer.

Mr. Lattimer disputes Ms. Cooper's narrative of her many unsuccessful efforts to connect with him, again effectively asking us to reassess the Hearing Committee's credibility determinations.⁸ Even if we could, but see supra pages 440–41, we would decline to do so. The Hearing Committee heard firsthand from Ms. Cooper, whose testimony was corroborated by phone logs and printouts of the emails, which were entered into the record and never challenged by Mr. Lattimer. In short, there was ample, unimpeached evidence to support the Hearing Committee's determination that Mr. Lattimer failed to adequately communicate with Ms. Cooper.

Mr. Lattimer also argues that he had no obligation under the Rules to contact Ms. Cooper when "he had no update on her case for her," and that the Rules required him to communicate with Ms. Cooper only when it was "necessary, required, and warranted." We cannot agree. Ignoring or electing not to respond to Ms. Cooper when she reached out to learn the...