In re Omwenga

• Decision Date: 16 August 2012
• Docket Number: No. 11–BG–942.,11–BG–942.
• Citation: 49 A.3d 1235
• Parties: In re Samuel N. OMWENGA, Respondent. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 461761).
• Court: D.C. Court of Appeals

49 A.3d 1235

In re Samuel N. OMWENGA, Respondent. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 461761).

No. 11–BG–942.

District of Columbia Court of Appeals.

Argued April 10, 2012.

Decided Aug. 16, 2012.

Samuel N. Omwenga, Washington, pro se.

Catherine L. Kello, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, were on the brief for petitioner.

Before WASHINGTON, Chief Judge, and BECKWITH and EASTERLY, Associate Judges.

PER CURIAM:

This matter comes before us upon the report and recommendation of the Board on Professional Responsibility (“Board”). The Board found that respondent Samuel N. Omwenga committed fifty-eight violations of twenty Rules of Professional Conduct in four consolidated matters. The Board has unanimously recommended to this court that respondent be disbarred based upon his: 1) intentional misappropriation in a matter involving respondent's client, Dawit Shifaw, and 2) other misconduct, particularly respondent's flagrant dishonesty, in all four client matters before the Board's consideration. Respondent takes exception to the Board's report and recommendation in its entirety, arguing that the Board's recommendation of disbarment is wholly without basis and unsupported by clear and convincing record evidence. We disagree, and accept the Board's findings and adopt its recommended sanction.¹ Accordingly, we order that respondent Samuel N. Omwenga be disbarred.

I.

The charges of disciplinary rule violations arose from a series of actions and inactions by respondent in five client matters. Based upon ethical complaints filed by a number of respondent's former clients and upon Bar Counsel's own investigation, Bar Counsel charged respondent with sixty-eight violations of twenty Rules of Professional Conduct, including intentional misappropriation of client funds in the Shifaw matter and dishonesty in three additional matters involving respondent's clients Josephine Gitau, Yeneneh Hailu, and Cane Mwihava. Because Bar Counsel failed to establish by clear and convincing evidence any violations with respect to the fifth matter, we focus our attention on the four remaining matters.

We accept the Board's findings of fact, “unless they are unsupported by substantial evidence of record,” and review legal conclusions de novo. D.C. Bar R. XI, § 9(h)(1); In re Pierson, 690 A.2d 941, 946–47 (D.C.1997). ² We adopt the Board's report, which sets forth and adopts the Hearing Committee's detailed findings of fact concerning respondent's misconduct, and offer a short summary of those findings here.

Dawit Shifaw retained respondent to represent him in the purchase of a laundromat business. Shifaw agreed to pay respondent $1,000 in legal fees in connection with the transaction. Respondent instructed Shifaw to give him a certified check in the amount of the agreed upon purchase price, $48,050, which respondent deposited into his operating account. Respondent was able to negotiate a more favorable price of $46,000, and withdrew this sum on December 1, 2004, to pay the seller. On the same day, respondent also withdrew the remaining balance of $2,050 in cash. The $2,050 balance was not deposited into another one of respondent's trust accounts. Respondent had not requestedShifaw's permission to withdraw the $2,050 or to use it for any other purpose. Shifaw demanded that respondent return the $2,050. Respondent eventually returned only $1,500, while retaining the difference of $550.

The Gitau, Mwihava, and Hailu matters all pertain to respondent's representation of clients in immigration proceedings. As a result of respondent's misconduct, both Josephine Gitau and Yeneneh Hailu were ordered removed in absentia from the United States. Cane Mwihava was arrested and detained by U.S. Immigration and Customs Enforcement as a result of respondent's failure to file the necessary paperwork to adjust Mwihava's immigration status.

The Hearing Committee conducted a ten-day evidentiary hearing, heard the testimony of Bar Counsel's twelve witnesses and of respondent himself, and admitted more than 100 exhibits.³ The Hearing Committee concluded that respondent committed fifty-eight violations of twenty Rules of Professional Conduct and recommended respondent's disbarment for intentional misappropriation in the Shifaw matter. Even absent evidence of respondent's intentional misappropriation, the Hearing Committee recommended disbarment based upon respondent's pattern of severe misconduct in all four matters.

Respondent filed exceptions to the Hearing Committee report while Bar Counsel took no exception. The Board heard oral argument and subsequently issued its report and recommendation, in which it expressly adopted and incorporated the Hearing Committee's report. The Board unanimously recommended ⁴ respondent's disbarment based upon his intentional misappropriation in the Shifaw matter and also recommended respondent's disbarment for his “serious and pervasive misconduct” in all four matters, “including the neglect and inadequate representation of his clients, his culpable indifference to their interests, his refusal to take responsibility for his actions, his lack of remorse, and his dishonesty to his clients, the courts, Bar Counsel and the Hearing Committee.”

Respondent now argues before this court that the Board's recommendation of disbarment for his alleged intentional misappropriation in the Shifaw matter is wholly without basis and unsupported by clear and convincing record evidence. Respondent also argues that the Board's adverse findings in the remaining matters should be rejected as inaccurate, distorted, or unsupported by clear and convincing record evidence.

We adopt the Board's report, incorporated herein as Appendix A. In this case, we are satisfied that the record demonstrates by clear and convincing evidence that respondent intentionally misappropriated client funds in violation of Rule 1.15(a), and that respondent engaged in other serious and pervasive misconduct, most especially flagrant dishonesty to his clients, the courts, Bar Counsel, and the Hearing Committee, specifically violating Rules 3.3(a)(1), 8.1(a), and 8.4(c). We therefore turn to a discussion of the appropriate sanctions.

II.

“The [Board]'s proposed sanction comes to this court with a strong presumption in favor of its imposition.” In re White, 11 A.3d 1226, 1233 (D.C.2011) (per curiam), cert. denied,––– U.S. ––––, 131 S.Ct. 2941, 180 L.Ed.2d 227 (2011). 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.’ ” In re Cleaver–Bascombe, 986 A.2d 1191, 1194 (D.C.2010) (per curiam) (quoting D.C. Bar R. XI, § 9(h)(1)).

Intentional Misappropriation

“[I]n virtually all cases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence.” Matter of Addams, 579 A.2d 190, 191 (D.C.1990) (en banc). We emphasize that “a sanction as severe as disbarment is warranted in cases involving misappropriation of client funds because such violations strike at the core of the attorney-client relationship by undermining the public's faith that attorneys will fulfill their duties as fiduciaries in handling funds entrusted to them by their clients.” In re Pierson, 690 A.2d at 948 (internal citation and quotation marks omitted).

Here, the record unequivocally supports the conclusion that respondent intentionally misappropriated client funds in the Shifaw matter. Respondent withdrew the remaining balance of $2,050 without Shifaw's permission and used that sum for a purpose unrelated to the purchase of the laundromat business. Respondent then compounded this offense when he only partially refunded Shifaw $1,500 and retained $550.⁵ Therefore, we accept the Board's recommendation that respondent be disbarred for intentional misappropriation. See In re Carlson, 745 A.2d 257, 259 (D.C.2000).

Dishonesty

Even absent evidence of intentional misappropriation, disbarment is warranted in this case based on respondent's other serious and pervasive misconduct alone, particularly his flagrant dishonesty. This court “reserve[s] the sanction of disbarment for the most extreme attorney misconduct,” including “dishonesty ‘of the flagrant kind.’ ” In re Howes, 39 A.3d 1, 15 (D.C.2012) (internal citation omitted); see In re Cleaver–Bascombe, 986 A.2d at 1199 (“Where we have concluded that the attorney's conduct falls into a category of dishonesty of a flagrant kind we have held disbarment to be the appropriate sanction.”). Particularly where dishonesty “is aggravated and prolonged, disbarment is the appropriate sanction.” In re Howes, 39 A.3d at 15.

Here, the record reflects that in connection with the Shifaw matter, respondent made a series of misrepresentations before the trial court for which he was sanctioned on five occasions. Respondent also filed false affidavits with the immigration court on behalf of his clients in the Gitau and Hailu matters, and made serious misrepresentations to his client in the Mwihava matter. Additionally, respondent made false statements to Bar Counsel in response to ethical complaints and testified untruthfully before the Hearing Committee.

“To determine what discipline is appropriate under the circumstances, we review the respondent's violations in light of all the relevant factors.” In re Cleaver–Bascombe, 986 A.2d at 1195. “These factors include (1) the nature of the violation, (2) the mitigating and aggravating circumstances, (3) the need to protect the public, the courts, and the legal profession, and (4) the moral fitness of the attorney.” Id. (alteration in original) (internal quotation and citation marks omitted).

First, the record indicates that the nature of the violation is egregious. Respondent...