In re Owusu, Bar Registration No. 442164

• Decision Date: 10 November 2005
• Docket Number: Bar Registration No. 442164,No. 04-BG-916.
• Citation: 886 A.2d 536
• Parties: In re Jacob Q. OWUSU, Respondent. A Member of the Bar of the District of Columbia Court of Appeals .
• Court: D.C. Court of Appeals

886 A.2d 536

In re Jacob Q. OWUSU, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 442164).

No. 04-BG-916.

District of Columbia Court of Appeals.

Argued October 20, 2005.

Decided November 10, 2005.

Elizabeth A. Herman, Senior Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel at the time the brief was filed, was on the brief, for the Office of Bar Counsel.

Elizabeth J. Branda, for the Board on Professional Responsibility.

Before TERRY, FARRELL, and REID, Associate Judges. FARRELL, Associate Judge:

The Board on Professional Responsibility (the Board), having found that respondent Jacob Q. Owusu committed serious neglect of an immigration matter, has recommended his suspension from the practice of law in the District of Columbia for sixty days, and that he be ordered to pay restitution and required to prove fitness to practice as a condition of reinstatement. Owusu has not participated in these disciplinary proceedings at any stage. Bar Counsel, for her part, excepts only to the Board's recommendation that an additional charge of violation of Rule 8.4(d), based partly on Owusu's failure to answer the disciplinary complaint underlying the neglect allegations, be dismissed.¹ Although Bar Counsel seeks no additional sanction for the alleged Rule 8.4(d) misconduct, she asks us to review the Board's finding of no violation because "the Court's interpretation of Rule 8.4(d) is critically important to Bar Counsel's investigations and the disciplinary system" (Br. for Bar Counsel at 2). For the reasons that follow, we conclude that there was no violation of Rule 8.4(d) here, and accept the Board's recommendation entirely.

A hearing committee and the Board both found that Owusu had violated the following Rules of Professional Conduct: 1.1(a) (duty of competent representation); 1.1(b) (duty to serve client with skill and care); 1.3(a) (duty of zealous and diligent representation); 1.3(b)(1) (intentional failure to pursue client's lawful objectives); 1.3(b)(2) (intentional prejudice or damage to client); and 1.4(a) (duty to keep client reasonably informed about the status of the matter and promptly comply with reasonable requests for information). The violations all stemmed from Owusu's actions and inactions beginning in 1997, when he was retained by Eugene Ajayi to represent him in seeking an adjustment of Ajayi's immigration status following his marriage to a United States citizen. Among other things, Owusu filed the application for adjustment of status in the wrong place, resulting in its rejection by the immigration authorities, and failed to appear at a key interview between immigration officials and Ajayi. Indeed, after meeting with Owusu before that interview and paying him the balance of the retainer, Ajayi never again succeeded in reaching him.

As stated earlier, Owusu has not appeared in these disciplinary proceedings and, accordingly, has filed no exceptions to the Board's findings or recommendation. The record, in any event, contains abundant support for the Board's conclusion that he engaged in serious and damaging neglect of his responsibilities to Ajayi, and for its recommendation — concurred in by Bar Counsel — of a sixty-day suspension, together with a requirement that he pay $3,500 in restitution and show fitness before reinstatement. See, e.g., In re Perez, 828 A.2d 206 (D.C.2003) (per curiam)

(ordering suspension for sixty days with reinstatement conditioned on showing of fitness "for protracted neglect and intentional conduct that resulted in prejudice ... to a vulnerable client"). The sole issue in dispute is whether the Board correctly determined, contrary to Bar Counsel's (and the Hearing Committee's) position, that Owusu had not also violated Rule 8.4(d) by his combined failure to respond to Bar Counsel's inquiry into his representation of Ajayi and failure to inform the Bar of his current address. Bar Counsel's acceptance of the sanction recommended by the Board makes it strictly unnecessary for us to consider that question,² but we proceed nonetheless to answer it given the importance Bar Counsel attaches to the issue.

In early March 2002, Ajayi complained to Bar Counsel about Owusu's conduct. On March 21, 2002, Bar Counsel opened an investigation by mailing Owusu, at his most recent address reflected in records of the D.C. Bar, a letter and a copy of Ajayi's complaint and a request that he respond. The letter was returned to Bar Counsel with the notation "moved, left no forwarding address." Bar Counsel also hired a process server who tried unsuccessfully to reach Owusu on repeated occasions. All subsequent motions, letters and pleadings that were mailed to him, at all addresses known to Bar Counsel, were returned as undeliverable. As of the date of the disciplinary hearing in 2003, Bar Counsel had not received a response to the misconduct allegations from Owusu.

In these circumstances, Bar Counsel and the Board agree that Owusu did not receive actual notice of the investigative inquiry. See, e.g., Br. for Bar Counsel at 7.³ Bar Counsel nevertheless charged him with violating Rule 8.4(d) by failing to respond to the inquiry and by failing to maintain a current address with the D.C. Bar, as required by D.C. Bar R. II §§ 2(1) and 2(4).⁴ Bar Counsel conceded to the Board that a Rule 8.4(d) charge "may not be appropriate" if an attorney "inexplicably" fails to receive a Bar Counsel letter of inquiry, provided he has maintained current address information with the Bar. But if an attorney fails to provide the Bar with an accurate address, Bar Counsel argued (and argues to the court) that the attorney has created a situation that keeps him ignorant of a disciplinary investigation, and in that case his failure to respond to Bar Counsel violates Rule 8.4(d) whether or not he was aware of the investigation. The Board rejected this application of Rule 8.4(d), and so do we.

"[A]n attorney's failure to respond to Bar Counsel's inquiries in an investigation of a disciplinary complaint ... violates Rule[] ... 8.4(d)." In re Burnett, 878 A.2d 1291, 1292 (D.C.2005) (per curiam). See also In re Beller, 802 A.2d 340 (D.C.2002) (per curiam)

; In re Delaney, 697 A.2d 1212, 1214 (D.C.1997); In re Siegel, 635 A.2d 345, 346 (D.C.1993) (per curiam). In Burnett, for example, the attorney was found to have violated the rule because of his "total failure to respond or cooperate with Bar Counsel in the investigation of three other disciplinary complaints" against him. 878 A.2d at 1292; see also Siegel, 635 A.2d at 346 (attorney "sought to avoid his responsibilities by deliberate evasion of Bar Counsel and his agents"). As Siegel illustrates, however, in each of the cited cases the respondent-attorney had been served personally with the complaint and/or orders of the Board, and thereafter failed to respond or cooperate with the investigation. See Burnett, 878 A.2d at 1292 ("respondent was personally served"); Beller, 802 A.2d at 340 (respondent "admitted [her] failure to respond to repeated inquiries from Bar Counsel"; no apparent claim of failure to receive notice); Delaney, 697 A.2d at 1213 ("the letter and the complaint were personally served on [r]espondent by a process server"). None of our decisions supports a violation of the rule for failure to respond when the attorney did not receive notice of the investigation.

Bar Counsel does not contend otherwise, which is why her argument for a Rule 8.4(d) violation rests on the additional fact that Owusu failed to keep the Bar informed of his current address. Quoting the Hearing Committee, Bar Counsel states that "where, as here, an attorney disappears and fails to provide the Bar with an accurate address, he has intentionally created a situation that would keep him ignorant of a Bar investigation" (Br. for Bar Counsel at 13); see id. (Owusu "created the situation so that he would not know of Bar Counsel inquiries") (emphases added). However, as the Board points out, this assertion of purposeful wrongdoing is unsupported by record evidence. Owusu's neglect of the immigration case began in September 1998 when he failed to appear for Ajayi's interview, and the client was unable to locate him thereafter. Owusu subsequently updated his address and telephone number on November 2, 1998, in the last registration statement he filed with the D.C. Bar. By the time Bar Counsel opened a disciplinary investigation and tried to forward Ajayi's complaint to Owusu in 2002, he had not filed registration statements with the Bar for over three years, for reasons unexplained in the record. Given this sequence of events, the assertion that Owusu intentionally kept his current address from the Bar to avoid either an actual or incipient investigation by Bar Counsel is wholly speculative. In its report, the Board made that point by asserting that, while "there may be circumstances under which it would be appropriate to impute knowledge of Bar Counsel['s] inquiry to a ... respondent" who has not disclosed his address, that would be unfair "under the facts presented here" where the reasons for the attorney's failure to update his address are unknown. We agree.

Imputing knowledge of Bar Counsel's inquiry to Owusu in these circumstances would effectively transform a violation of an administrative Bar rule into the more serious violation of failure to respond to Bar Counsel under Rule 8.4(d), without any evidence of purpose linking the failure to register and failure to respond. Our cases defining a Rule 8.4(d) violation prohibit that course. The leading decision is In re Hopkins, 677 A.2d 55 (D.C.1996), in which the court began by observing that the rule — more precisely, its predecessor rule, which did not differ significantly in content from Rule 8.4(d), see id. at 56 n.1 — is generally meant "`to encompass derelictions of attorney conduct considered reprehensible to the practice of law,'" id. at 59 (quoting In re...