In re Robinson, 96-BG-1965.

• Decision Date: 22 January 1998
• Docket Number: No. 96-BG-1965.,96-BG-1965.
• Citation: 705 A.2d 687
• Parties: In re Wendell T. ROBINSON, Petitioner.
• Court: D.C. Court of Appeals

705 A.2d 687

In re Wendell T. ROBINSON, Petitioner.

No. 96-BG-1965.

District of Columbia Court of Appeals.

Argued December 9, 1997.

Decided January 22, 1998.

Samuel McClendon, Washington, DC, for petitioner.

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 SCHWELB and FARRELL, Associate Judges, and BELSON, Senior Judge.

FARRELL, Associate Judge:

On December 19, 1990, this court disbarred petitioner on the basis of his misappropriation of client funds and dishonesty. In re Robinson, 583 A.2d 691 (D.C.1990) (per curiam) (Robinson I). By a letter dated August 7, 1995, petitioner applied to the Board on Professional Responsibility for reinstatement. A hearing committee received evidence on the petition and, in a lengthy opinion, recommended that it be denied. The Board, over the dissent of three members, also recommended denial. We deny the petition for reinstatement.¹

I.

Petitioner misappropriated a relatively modest amount of a client's money, although in circumstances which left this court in no doubt that his conduct had been dishonest. We summarized those circumstances in Robinson I, 583 A.2d at 692, and do not repeat them here. As is often true in misappropriation cases marked by more than simple negligence, petitioner's dishonesty appeared to be the natural outgrowth of a gross indifference to his financial obligations, aggravated by an attempt to conceal his default from the disciplinary process.² That fact is important because of the court's recognition that in reinstatement cases primary emphasis should be given to matters bearing most closely on the reasons why the attorney was suspended or disbarred in the first place. In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985); see id. (one such factor is "the attorney's conduct since discipline was imposed, including the steps taken to ... prevent future wrongs"). In this case, the hearing committee and the Board were deeply troubled by petitioner's conduct of his financial affairs since disbarment and his lack of candor with Bar Counsel in the reinstatement process.

The Board summarized this evidence in part as follows, beginning with petitioner's involvement in Linro Enterprises:³

Linro was a family partnership started by Petitioner and his wife in 1989. Initially it was used for real estate ventures and later for stock trading. Since late 1992, Linro's primary activity has been the making of a movie. Colonel James P. Allen, Jr., who testified as a character witness, was brought in as a 50% partner in the movie's production. Petitioner and his partners have invested at least $265,000 in the project since 1992, of which $240,000 came from Petitioner and his wife. Most of this money was obtained from advances on his and his wife's credit cards and the liquidation of her two pension funds. This movie venture has not produced any income but has provided significant Schedule A and C tax deductions on Petitioner's and his wife's federal tax returns.

The checking account records for Linro were subpoenaed by Bar Counsel in connection with the reinstatement proceedings. The records show that Petitioner, his wife, and Col. Allen were signatories on the Linro checking account. Later, Col. Allen took his name off the account. Starting in June 1993 and continuing thereafter through July 1995, Petitioner wrote 28 checks on the Linro account that either bounced or created overdrafts on the account.

* * * *

Petitioner prepares his personal tax returns. He continues to pay federal taxes for tax years 1991, 1992 and 1993 under an agreement with the Internal Revenue Service that allowed him until June 1996 to be current on his back taxes. At oral argument before the Board in September 1996, counsel for Petitioner was unable to represent whether that agreement had been satisfied.

Petitioner failed to produce any District of Columbia tax returns at the reinstatement hearing even though they were called for by a Bar Counsel subpoena. He testified that he believed he had filed his 1991 and 1992 District of Columbia returns and did not know why those returns were not produced pursuant to the subpoena. Petitioner admitted that he had not filed his District of Columbia returns for at least 1993 and 1994. Petitioner did not know whether he owed money to the District of Columbia. He did not provide any justification for not filing his D.C. returns. Following the hearing in this matter, Petitioner submitted his D.C. tax returns for 1991 through 1994, as PX 7. The returns showed that Petitioner had not filed his 1991 or 1992 return as he testified, that his District of Columbia tax returns for all four years had been filed after the hearing, and that he owed money to the District of Columbia in two of the four tax years.

Moreover, the Board found,

in his original and restated Reinstatement Questionnaire, Petitioner responded "not applicable" to Question 17 as to whether he had any financial obligations "which are or have been past due more than 90 days" during the period of his discipline. He failed to disclose that he might well have past due obligations to the District of Columbia government, that he had past due obligations to the Internal Revenue Service, and that the IRS had placed a lien on his salary.

On the basis of these facts, the Board agreed with the hearing committee that petitioner's conduct of his financial affairs had been considerably "less than exemplary" and "demonstrated the same financial irresponsibility and lack of restraint which led to his disbarment." The committee and the Board concluded as well that petitioner's evasiveness about the status of his D.C. tax obligations "raised serious questions about his ability to be fully truthful in the reinstatement process." In recommending against reinstatement, the Board found "itself with doubts that petitioner has the necessary regard for the truth and his obligations as a member of the Bar to follow and uphold all laws applicable to him, that he has the requisite controls over his financial habits, and that he has the requisite honesty to resume the practice of law."

II.

"The burden of proof in a reinstatement case is on the petitioner to demonstrate by clear and convincing evidence that he or she is fit to resume the practice of law." In re Roundtree, 503 A.2d at 1216; D.C. Bar R. XI, § 16(d). Although "the ultimate decision on whether an attorney is reinstated is this court's alone," we nonetheless give "great weight" to the findings and recommendations of the Board. Roundtree, 503 A.2d at 1217.

It is almost self-evident that an attorney disbarred for dishonest misappropriation must pay scrupulous attention to his financial obligations during the five-year period before he is eligible for and seeks reinstatement. Moreover, few things will doom a reinstatement petition more surely than a failure to cooperate frankly and completely with the investigation attending that process. Petitioner's shortcomings in both these respects left the Board unable to recommend reinstatement despite petitioner's undisputed satisfaction of other criteria relevant to the decision. See Roundtree, 503 A.2d at 1217.⁴ We agree with the Board's analysis and recommendation.

First, we cannot disregard as simple "imprudence"⁵ petitioner's unmistakable pattern of writing checks without sufficient funds to support Linro Enterprises—behavior reminiscent of actions that led to his disbarment. See Robinson I, 583 A.2d at 692.⁶ Second, as the Board pointed out, petitioner ran up large debts to finance a movie while behind in paying his federal taxes and while not filing his District of Columbia tax returns for four years in succession. His reply in extenuation that he was owed an aggregate refund for those years may be wrong factually,⁷ and in any event cannot explain his simple disregard of the duty to file tax returns. Third, especially troublesome to us, as it was to the Board, is petitioner's evasiveness about these matters in the Reinstatement Questionnaire, in failing to respond to the subpoena for his District tax records, and in both filing and producing them after the reinstatement hearing despite implying at the hearing that he had previously filed for...