IN RE RICHARDSON, 90-1539

• Decision Date: 17 January 1992
• Docket Number: No. 90-1539,90-1539
• Court: D.C. Court of Appeals
• Parties: In re T. Carlton RICHARDSON, Respondent.

602 A.2d 179

In re T. Carlton RICHARDSON, Respondent.

No. 90-1539.

District of Columbia Court of Appeals.

Argued December 13, 1991.

Decided January 17, 1992.

Before TERRY and KING, Associate Judges, and MACK, Senior Judge.

PER CURIAM:

This matter comes to us from the Board on Professional Responsibility (the Board) as a reciprocal discipline case that arose because the Supreme Court of Florida disciplined respondent for charging clearly excessive attorney's fees. The Florida court suspended respondent for ninety-one days, required proof of fitness for reinstatement, imposed a two-year probation period after reinstatement, and required the payment of $15,470 in restitution and $5,144.81 in costs for the disciplinary process.¹ The Board in its report concluded that a de novo hearing was not required and that reciprocal discipline was warranted. However, it recommended a different sanction, a suspension of ninety-one days followed by automatic reinstatement. We agree with the Board's conclusions. Accordingly, we adopt the Board's recommendation and incorporate the Board's report as an appendix to this opinion.

The standards for imposition of reciprocal discipline are set forth in D.C.Bar R. XI, § 11(c) which provides:

(c) Standards for reciprocal discipline. Reciprocal discipline shall be imposed unless the attorney demonstrates, by clear and convincing evidence, that:

(1) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion on that subject; or

(3) The imposition of the same discipline by the Court would result in grave injustice; or

(4) The misconduct established warrants substantially different discipline in the District of Columbia; or

(5) The misconduct elsewhere does not constitute misconduct in the District of Columbia.

Unless there is a finding by the Board under (1), (2), or (5) above that is accepted by the Court, a final determination by a disciplining court outside the District of Columbia or by another court in the District of Columbia that an attorney hasbeen guilty of professional misconduct shall conclusively establish the misconduct for the purpose of a reciprocal disciplinary proceeding in this Court.

Although respondent does not rely specifically on any of the five enumerated exceptions of R. XI, § 11(c), he nevertheless claims the Florida judgment is deficient and that he is therefore entitled to a de novo hearing before the Board before discipline can be imposed by this court. Specifically, respondent claims: (1) he was denied due process and equal protection because the selection criteria of the Florida grievance committee, which found probable cause, resulted in no representation of members of respondent's race; (2) Florida Bar Counsel's presence during the deliberation of the grievance committee violated due process; (3) the probate court in Florida, which found respondent had charged excessive attorney's fees, lacked subject matter or personal jurisdiction; (4) the Florida Supreme Court denied due process when it imposed a sanction more severe than recommended by the referee without giving respondent an opportunity to be heard on that point; (5) the Florida Bar regulation on fees for legal services violates federal antitrust laws; (6) the Florida Bar regulation governing fees for legal services is void for vagueness; and, (7) the evidence in the Florida proceeding was defective in several respects and should not be used as a basis for reciprocal discipline.² These points were all raised and rejected by the Florida Supreme Court either in the initial appeal or in one of the orders responding to the two petitions for rehearing. The Florida Bar v. Richardson, supra note 1, 574 So.2d at 62.³ We conclude that, giving due deference to decision of another jurisdiction in a reciprocal discipline case, the principles of collateral estoppel obligate us to accept the holding of that court. See, e.g., In re Loigman, 582 A.2d 1202, 1203 (D.C. 1990); In re Velasquez, 507 A.2d 145, 147 (D.C. 1986); Ali Baba Company v. Wilco, Incorporated, 482 A.2d 418, 421-22 (D.C. 1984).

In addition, we agree with the Board's recommendation that a lesser sanction should be imposed for the reasons set forth in its report. Bar Counsel supports that recommendation and respondent has noted that he takes no exception to it.⁴ The only issue remaining then is to determine the time period for the ninety-one day suspension.

On June 24, 1991, this court entered an order temporarily suspending respondent from the practice of law pursuant to Rule XI, § 11(d). On July 31, 1991, the Board issued its report recommending a suspension of ninety-one days commencing on June 24, 1991, the effective date of the temporary suspension ordered previously. On September 18, 1991, respondent filed a petition for dissolution of the temporary order on the grounds that the ninety-one day suspension term would expire on September 23, 1991. We granted the petition on December 18, 1991. Bar Counsel, in its opposition to respondent's September 18, 1991, petition, informed this court that respondent failed to satisfy the notice requirements of District of Columbia Bar Rule XI, § 14 until September 18, 1991. Therefore, reasoned Bar Counsel, the suspension should commence on that date and not expire until December 18, 1991. We are satisfied that respondent has servedthe suspension recommended by the Board and approved by us. No further period of suspension is required.

It is therefore ORDERED that respondent shall be, and hereby is, suspended from the practice of law in the District of Columbia for ninety-one days, commencing June 24, 1991.

APPENDIX

DISTRICT OF COLUMBIA COURT OF APPEALS

BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of: T. CARLTON RICHARDSON, Respondent.

Bar Docket No. 208-90

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This Board has to determine if the discipline received by Respondent from the Supreme Court of Florida should be imposed reciprocally in our jurisdiction based upon violations of the Code of Professional Responsibility. If we find that the Florida proceeding has satisfied the standards for reciprocal discipline, then Respondent should receive identical discipline in this jurisdiction. D.C. Bar Rule XI, § 11(c).

Respondent was found by the Supreme Court of Florida to have violated Rule 2-106(A) (charging a clearly excessive fee). That court suspended Respondent for ninety-one days beginning on May 21, 1990, required proof of fitness for reinstatement, imposed a two-year probationary period after reinstatement, and required Respondent to pay $15,470 in restitution, plus $5,144.81 in cost for the disciplinary process. Respondent filed numerous objections in Florida and requested a rehearing, which has since been denied. The Florida Bar v. T. Carlton Richardson, Supreme Court of Florida, No. 73,214 (February 14, 1991).

Before this Board Respondent presses many of the same objections he proposed to the Supreme Court of Florida. This Board after reviewing this case determines that reciprocal discipline is warranted, but we decide that a different sanction should be imposed here. See, In re Reid, 540 A.2d 754 (D.C.App. 1988); D.C. Bar Rule XI § 11(g).

I. DISCIPLINARY VIOLATIONS ESTATE PROBATE

The case against Respondent involves two separate incidents both concerning Mr. and Mrs. Roosevelt Jones. Mr. Jones, a seventy-four year old longshoreman and his seventy-three year old wife approached Respondent on March 31, 1983 to probate the estate of Leula King of Tampa, Florida. Ms. King had died fifty years earlier and had an estate consisting of one piece of real estate valued at $22,000, with no outstanding debts whatsoever. Mr. and Mrs. Jones agreed to pay Respondent a $500 origination fee and 10% of the estate's value. The origination fee was to be included within the percentage of the estate received by Respondent.

Between February 24, 1984 and July 5, 1985, Respondent prepared the necessary documents and charged the Jones $10,550.99. When the Jones couple indicated that they did not have the funds to pay the fee, but told Respondent they did have a debt-free home, Respondent arranged for them to obtain a loan. A substantial portion of the $13,000 loan was used to satisfy Respondent's fee.

Subsequently, the Joneses retained another attorney to complete the estate work, discharged Respondent and sought the return of the fees paid. Judge Dennis Alvarez of the Hillsborough County Circuit Court, Probate Division heard the petition of the Jones couple for the return of the fee paid to Respondent. Later, during the disciplinary proceeding, Respondent testified that a portion of this fee included a monthly cover charge he levied against all his clients to enable Respondent to do pro bono work. He billed the Jones couple twenty minutes for each phone call, even if no one answered the phone and finally, he billed a minimum of forty-five minutes per page for each document he prepared for the estate. The Jones couple presentedexpert testimony which told the court that $2,500 was a reasonable fee based upon the difficulty of the work required by the estate, with approximately $150.29 in cost incurred. Judge Alvarez' initial decision was appealed by Respondent.¹

On remand, Judge Alvarez' final determination was that the Jones couple had paid Respondent $10,550.99. He further determined that reasonable counsel fees and costs for Respondent to have charged the Jones couple would have been $2,650.29 and thus required Respondent to reimburse the King estate $7,970, reasonable counsel fees of $6,500 for pursuit of this reimbursement, plus costs of $1,000 for two proceedings before the Circuit Court. Judge Alvarez entered...