In re Silva
| Decision Date | 01 September 2011 |
| Docket Number | Bar Docket No. 077-06 and 062-08 |
| Parties | In the Matter of: THEODORE S. SILVA, JR., Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 412894) |
| Court | D.C. Court of Appeals |
Respondent is before the Board on Professional Responsibility ("Board") on consolidated original and reciprocal disciplinary matters. The original matter relates to Respondent's admitted failure to complete work for a client, his subsequent falsification of the signatures of others, including falsely notarizing documents, and falsely advising his client and supervising partner that work had been completed. The Hearing Committee found violations of eight disciplinary rules and recommended that Respondent be disbarred. In re Silva, Bar Docket Nos. 077-06 and 062-08 at 54 (Hr'g Comm. Rpt. Jan. 26, 2009) ("H.C. Rep."). In reaching that recommendation, the Hearing Committee rejected Respondent's claim of mitigation under In re Kersey, 520 A.2d 321 (D.C. 1987) (en banc).
The reciprocal discipline matter arises out of Respondent's felony conviction in late 2002 in Arlington, Virginia, for possession of cocaine.1 Respondent never reported that conviction to the Virginia State Bar Disciplinary Board (the "Virginia Board") or to Bar Counsel. After the Virginia Board learned of the conviction in 2007, it directed Respondent to show cause andnoticed a hearing relating to the conviction. On January 22, 2008, Respondent entered into an Agreed Disposition with the Virginia Board pursuant to which the Virginia Board issued a Public Reprimand With Terms.2 Bar Counsel advised the Court of the Virginia disciplinary action in February 2008, and on March 4, 2008, the Court referred the matter to the Board. Order, In re Silva, No. 08-BG-82 (D.C. Mar. 4, 2008). The two matters were consolidated pursuant to Bar Counsel's Unopposed Motion to Consolidate, which was granted by the Board on April 6, 2009.3 Oral argument was held before the Board on April 9, 2009.
We recommend that Respondent be suspended for three years with a fitness requirement in connection with the original matter. With respect to the reciprocal disciplinary matter, we recommend that, in light of the Court's decisions in In re Filomeno, No. 07-BG-863 (D.C. Aug. 18, 2008) (per curiam), and In re Portner, No. 08-BG-28 (D.C. Feb. 4, 2009) (per curiam), the Court require Bar Counsel to publish the reprimand by the Virginia Board on the D.C. Bar Website in accordance with D.C. Bar. R. XI, § 11(c).
On June 29, 2007, Bar Counsel filed a Specification of Charges alleging that Respondent had violated Rules 1.3(a), (b) & (c), Rules 1.4(a) & (b), and Rules 8.4(b) & (c) in connection with his handling of a real estate transaction while he was a partner at the law firm of Holland & Knight. After obtaining several extensions of time, Respondent on November 6, 2007, filed his Answer and an Acknowledgement of Disability (or Addiction) ("Acknowledgement") in which he raised a Kersey defense in mitigation pursuant to Board Rule 7.6(a). In thatAcknowledgement, he claimed that any misconduct was the result of his alcohol and cocaine addiction and his attention deficit disorder ("ADD") and depression. On December 4, 2007, the Board, acting pursuant to Board Rule 7.6(c), issued an Order, amended by an Order issued on December 10, 2007, conditioning Respondent's continued practice of law on his (i) abstaining from the use of alcohol and the recreational use of any drugs during the pendency of this proceeding, (ii) filing quarterly reports with the Board, with a copy to Bar Counsel, of the results of his random drug testing, and (iii) providing 30 days' notice to the Board and Bar Counsel of his intent to represent clients so that the Board can consider the appointment of a monitor to supervise his practice at that time. Order, In re Silva, Bar Docket No. 077-06 (BPR Dec. 4, 2007); Amended Order, In re Silva, Bar Docket No. 077-06 (BPR Dec. 10, 2007). Respondent is currently practicing as a contract attorney reviewing documents, Tr. 161,4 and has not sought approval to represent clients.
The matter was assigned to Hearing Committee Number Seven which held prehearing conferences on October 1st and November 2, 2007, and a hearing on December 10, 2007. Respondent was represented by counsel. Prior to the hearing, the parties entered into a detailed stipulation in which Respondent admitted to the facts concerning his misconduct and admitted that his conduct violated Rule 1.3(a), Rules 1.4(a) & (b), and Rule 8.4(c). Joint Stipulations, filed Nov. 20, 2007 ("Joint Stipulations"). At the hearing, Bar Counsel called two witnesses, Mr. David Kahn, the partner at Holland & Knight with whom Respondent worked extensively, Tr. 25-30, 90, and Dr. Neil Blumberg, a forensic psychiatrist who testified as an expert witness. Bar Counsel offered 28 exhibits into evidence, BX A-D & BX 1-24,5 which were admitted withoutobjection. Tr. 22, 228, 241. Respondent testified on his own behalf and offered two exhibits into evidence, RX 1-2, which were also admitted without objection. Tr. 164, 170.
The Hearing Committee prepared a detailed and comprehensive report in which it held that Respondent had violated Rule 1.3(a) (), Rule 1.3(b)(1) (), Rule 1.3(b)(2) (), Rule 1.3(c) (), Rule 1.4(a) (), Rule 1.4(b) (), Rule 8.4(b) (), and Rule 8.4(c) (dishonesty and misrepresentation). As noted, the Hearing Committee recommended that Respondent be disbarred.
The essential facts concerning Respondent's conduct are admitted in the Joint Stipulations and set forth in detail in the Hearing Committee's Findings of Fact. Those findings are supported by clear and convincing evidence and, except to the extent that they are clarified or modified by the findings below, we adopt them.6
Respondent was a real estate lawyer with the firm of Holland & Knight. He joined the firm in 1994 and was made a partner in 1995. FF 2, H.C. Rep. at 3. No later than 2003, Mr. Kahn asked Respondent to negotiate and prepare an Easement Relocation Agreement ("ERA") between their client, 15th & L Street Development, LLC (the "Client"), adjacent land owners and others to close an alley in connection with the redevelopment of certain property the Client hadacquired on 15th and L Streets in Washington, D.C. FF 3-5, H.C. Rep. at 3-4. While Respondent started work on the ERA in a timely manner, meeting with counsel for the other parties, he never completed the ERA. Rather, he provided the Client with an ERA on which he signed the names of representatives of the adjacent landowners and other parties and signed the notarizations of those signatures using names of fictitious D.C. notaries. FF 7-13, H.C. Rep. at 5-8. Respondent also falsely assured Mr. Kahn and the Client that the ERA had been recorded in the land records of the District of Columbia. FF 16, H.C. Rep. at 8-9.
In reliance on Respondent's representations that the ERA was completed, the Client proceeded with closing and entered into a construction contract for the project. FF 17-18, H.C. Rep. at 9. In January 2006, Respondent provided the Client with a Construction Commencement Notice, as required by the ERA, purporting to give the other parties notice of the Client's intent to commence construction in 45 days. While he advised the Client that he had sent the notice to the other parties, he did not. FF 19-20, H.C. Rep. at 9-11. On January 27, 2006, an assistant to the Client's representative sent a copy of a revised Construction Commencement Notice to William Carmody, Esq., counsel for one of the adjacent land owners. FF 22, H.C. Rep. at 11.
On January 30, 2006, Mr. Carmody sent a letter by fax to Respondent, the Client and others involved in the transaction advising them that the ERA referenced in the Construction Commencement Notice did not exist. Mr. Carmody stated that his client had never agreed to the terms of an ERA, and that, until there was a valid agreement among the parties, the "rights and obligations of our respective clients continued to be governed by the existing easement agreements . . . .". BX 15; FF 23, H.C. Rep. at 11-12. Respondent sent an e-mail to the Client on the following morning assuring it that Carmody's fax was a misunderstanding and that he would straighten it out in the morning. FF 24, H.C. Rep. at 12. When the Client could not reachRespondent that day, it notified Mr. Kahn, who then confronted Respondent. Joint Stipulations, ¶19; FF 27, H.C. Rep. at 13.
Respondent admitted his actions and attributed them to stress, his use of cocaine and drinking. FF 24-27, H.C. Rep. at 12-13. Mr. Kahn notified the Client, undertook to cure the problems caused by Respondent's misconduct, and did so at a substantial cost to the law firm. Mr. Kahn did not bill the Client for the time required to cure the problems, the law firm agreed to reimburse the other parties for their costs in dealing with the situation and the firm agreed to pay the Client for its out-of-pocket damages due to Respondent's misconduct.7 In total, Holland & Knight incurred approximately $150,000 in out-of-pocket expenses plus the value of the 50 hours Mr. Kahn devoted to curing the problems caused by Respondent's...
To continue reading
Request your trial