In re Soto
| Docket Number | 22-BG-0601 |
| Decision Date | 03 August 2023 |
| Parties | In re Benjamin M. Soto, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 453728) |
| Court | D.C. Court of Appeals |
Argued May 25, 2023
On Report and Recommendation of the Board on Professional Responsibility (Disciplinary Docket No. 2015-D087) (Board Docket No. 20-BD-057)
Peter R. Kolker, with whom Casey Trombley-Shapiro Jonas was on the brief, for respondent.
Theodore (Jack) Metzler, Senior Assistant Disciplinary Counsel, for the Office of Disciplinary Counsel. Hamilton P Fox, III, Disciplinary Counsel, Julia L. Porter, Deputy Disciplinary Counsel, Myles V. Lynk, Senior Assistant Disciplinary Counsel, and Joseph C. Perry, Assistant Disciplinary Counsel, were on the brief for the Office of Disciplinary Counsel.
Before ALIKHAN and SHANKER, Associate Judges, and FISHER, Senior Judge.
The Board on Professional Responsibility recommends that we suspend respondent Benjamin M. Soto from the practice of law for six months based on his conduct in a real estate transaction and the ensuing disciplinary investigation. The Board found that Soto had violated D.C. R. Prof. Conduct 8.1(a) 8.4(c), and 8.4(d). Soto takes exception to the finding that he violated Rule 8.1(a); he also argues that a lesser sanction is appropriate in any event. Disciplinary Counsel contends that a one-year suspension is warranted. We agree with the Board that Soto violated all three Rules and because a six-month suspension is within the range of sanctions imposed for misconduct of this magnitude, we accept the Board's recommendation and suspend Soto for six months.
Since 2002, Soto has owned and operated a real estate settlement company. In 2012, William Duggan hired Soto's company to help him obtain legal title to a property located at 246118th Street N.W. (the Property) where Duggan operated a bar and restaurant. Duggan wanted to use the Property as collateral for a bank loan to his soon-to-be formed company-Lenjeswil, LLC-but he could not do so because the Estate of Jack Littlejohn held title to the Property. This was a complicated transaction that included preparation of a deed in lieu of foreclosure because various loans made to Jack Littlejohn and secured by the Property had not been repaid. Over time, the resulting defaulted notes changed hands on multiple occasions. By the time Duggan sought to acquire title to the property, he asserted that he had purchased the right to collect the balances due on the outstanding loans. The Littlejohn Estate was then reopened so that the Property could be transferred.
In December 2012, the Estate's personal representative-Homer Littlejohn- signed the deed and a related tax form. Homer's attorney-Ara Washington-also signed as a witness, and the signatures were notarized. Following his practice in foreclosures of this type, Soto prepared a deed which stated that the Property was being transferred from the Littlejohn Estate to Lenjeswil for "no consideration." The deed was not recorded at the time it was signed, however. When Duggan later reviewed the documents, he angrily objected to the recital of "no consideration" because (for complicated reasons we need not explain) it would increase the amount of transfer and recordation taxes he would have to pay.
After consulting the D.C. tax code and speaking with the Recorder of Deeds, Soto agreed with Duggan that the consideration figure could be changed. On February 19, 2013, Soto directed his employee to change the amount of consideration shown on the documents. To implement the change, a new first page of the deed was created that revised the amount of consideration from "no consideration" to $450,000 and removed all references to a substitute trustee (a third party exercising the right to foreclose on the deed of trust who should have remained on the new deed for legal reasons). The original second page-containing the notarized signatures of Homer Littlejohn and Ara Washington-was then attached to the newly created first page. The second page of the tax form was also revised to reflect the new amount of consideration and the recalculated (lower) amount of taxes due. Soto did not obtain authorization from the signatories and the notary before making these changes.[1]
On April 3, 2013, the altered documents were recorded. Afterward, the probate court requested a copy of the recorded deed in connection with the closing of the Littlejohn Estate. Soto's employee then sent attorney Washington a copy of the recorded deed and tax form. Upon receipt, Washington noticed the discrepancies between what she and Homer Littlejohn had signed and the now-recorded deed and accompanying tax form.
Washington confronted Soto about the changes and requested documentary proof that Homer had received $450,000. Soto replied, "What discrepancy?" and asked if she was joking about the proof of consideration. In January 2014, a probate court auditor inquired about the consideration and why it had not been reported as an asset of the estate since the Property had previously been reported as a loss. Washington told the auditor that the recorded deed was not the deed that she and Homer had signed. The auditor requested more information; this prompted Washington and Homer to visit the Recorder's Office to rectify the situation, but Washington was told that there was nothing that she could do to change the recorded deed.
Washington tried to contact Soto to correct the deed, but Soto did not respond. The matter was referred to the Auditor-Master due to concerns about fraud in the reopened estate. Washington and Homer were ordered to appear at a status hearing where Washington testified that (1) neither Homer nor the estate was responsible for the changes to the deed, (2) no one had received $450,000 in consideration, and (3) court records for the estate showed a foreclosure on the property in March 1995. Following the hearing, the Auditor-Master referred the matter to Disciplinary Counsel "to investigate the recording of a deed." In his introductory remarks, the Auditor-Master explained that "[i]t appears from the record that Benjamin Soto, Esq., a member of the bar, either changed the language of a previously executed deed, or caused it to be changed, in order to assist a grantee in paying less transfer taxes." The referral observed that "[i]f the deed was altered before it was filed, that act appears to be a forgery as defined in D.C. Code § 22-3241(a)(1)(A) and (B)." The Auditor-Master noted that he had not subpoenaed Mr. Soto, or anyone from his firm, to appear.
On March 25, 2015, the Office of Disciplinary Counsel sent its initial inquiry and copies of the Auditor-Master's report and referral to Soto, asking him to "provide a substantive, written response . . . to each allegation of misconduct." On May 15, 2015, Soto's counsel responded by letter and Soto certified that his counsel's statements were true and correct to the best of his knowledge. Their response sought to explain the changes to the deed, by which the Estate of Jack Littlejohn granted the property to Lenjeswil LLC.
Soto's response asserted that the "adjustment" to the deed "was a correction, not a falsification" and "there was no fraudulent intent." But the narrative implied that Lenjeswil was both the lender and the buyer with regard to the Property: "The lender was the grantee under the Deed and is also referred to herein as the 'buyer.'" Soto also stated that "the lender" had unsuccessfully tried to foreclose on the Property when Jack Littlejohn owned it and that "the lender did not record a Substitute Trustee's Deed transferring title to the lender following the foreclosure." Additionally, Soto explained that the $450,000 in consideration "was based on the loan the buyer provided to the decedent" (Jack Littlejohn). Disciplinary Counsel asserted that these statements were intentionally false and misleading because Lenjeswil, which was created in 2012, neither foreclosed on the Property nor made any loans to Jack.
Disciplinary Counsel charged Soto with violations of Rules 8.1(a), 8.1(b), 8.4(b), 8.4(c), and 8.4(d) based on the unauthorized alterations and his response to the disciplinary inquiry. The Ad Hoc Hearing Committee found that Disciplinary Counsel proved the violations of Rules 8.1(a), 8.4(c), and 8.4(d) by clear and convincing evidence and recommended that Soto be suspended from the practice of law for six months. The Board agreed that Soto violated Rules 8.1(a), 8.4(c), and 8.4(d) and accepted the Hearing Committee's recommendation of a sanction.
When reviewing the Board's Report and Recommendation, we "shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall 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." D.C. Bar R. XI, § 9(h)(1). "Substantial evidence means enough evidence for a reasonable mind to find sufficient to support the conclusion reached." In re Thompson, 583 A.2d 1006, 1008 (D.C. 1990) (per curiam). "[I]n considering the Board's 'findings of ultimate fact or conclusions of law, we owe them no deference; our review is de novo.'" In re Bailey, 283 A.3d 1199, 1205 (D.C. 2022) (quoting In re Yelverton, 105 A.3d 413, 420 (D.C. 2014)).
Respondent Soto does not contest the findings that he violated Rules 8.4(c) and 8.4(d) by altering the notarized documents. These rules provide that "[i]t is professional misconduct for a lawyer to: . . . [e]ngage in conduct involving dishonesty fraud, deceit, or misrepresentation"...
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