In re Steele, 92-SP-588.

• Decision Date: 19 August 1993
• Docket Number: No. 92-SP-588.,92-SP-588.
• Citation: 630 A.2d 196
• Parties: In re Sonya D. STEELE, Respondent.
• Court: D.C. Court of Appeals

630 A.2d 196

In re Sonya D. STEELE, Respondent.

No. 92-SP-588.

District of Columbia Court of Appeals.

Argued June 17, 1993.

Decided August 19, 1993.

Sonya D. Steele, pro se.

Leonard H. Becker, with whom H. Clay Smith III, was on the brief, for the Office of Bar Counsel. Joan L. Goldfrank, for the Board on Professional Responsibility.

Before FARRELL and KING, Associate Judges, and BELSON, Senior Judge.

BELSON, Senior Judge:

The Board on Professional Responsibility has concluded that respondent, Sonya D. Steele, a member of the District of Columbia Bar, violated DR 6-101(A)(3) (neglecting a legal matter), DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), and Rule 8.4(d) of the Rules of Professional Responsibility (engaging in conduct that seriously interferes with the administration of justice). The Board recommends that respondent be suspended from the practice of law for sixty days, and ordered to pay restitution in the amount of $300. Challenging the Board's recommendation, the Office of Bar Counsel argues that this court should impose the additional requirement that respondent prove her fitness to return to the practice of law. While we agree with the Board's findings of violations and order that respondent be suspended from the practice of law in the District of Columbia for a period of sixty days, and that she pay restitution in the amount of $300, we also find that respondent's conduct raises substantial questions about her fitness to practice law and require that she prove her fitness to do so before returning to practice.

I.

On June 8, 1990, respondent Sonya D. Steele accepted a $300 retainer fee to represent her client as a plaintiff in a landlordtenant action, assured her client that she would prepare and serve the necessary papers, and later represented to him that a hearing date had been set for October 26, 1990. Prior to that date, the client had settled his case and had attempted, without success, to inform Steele of the settlement. On the supposed hearing date, the client went to court andlearned that Steele had never filed the case. Shortly thereafter, he filed a complaint in the Small Claims Branch and received a default judgment for the $300 he had paid to Steele, plus costs. Steele did not pay the judgment and, in November 1990, her client filed a complaint with Bar Counsel.

Neither Bar Counsel's numerous attempts to inform Steele by mail or by personal service of the pending complaint, nor the Board's order to compel an answer to the complaint, were successful. A June 26, 1991, order to compel a written response to inquiries by Bar Counsel was returned with the notation that Steele had moved.

On August 30, 1991, Bar Counsel filed a Petition Instituting Formal Disciplinary Proceedings charging Steele with violations of DR 6-101(A)(3) (neglecting a legal matter), DR 7-101(A)(1) (intentionally failing to seek the lawful objectives of a client), DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice), and Rule 8.4(d) of the Rules of Professional Responsibility (engaging in conduct that seriously interferes with the administration of justice). The matter was submitted to Hearing Committee No. 9 on December 4, 1991. Bar Counsel argued the violations charged in the petition, except—mistakenly—Bar Counsel treated the original DR 7-101(A)(1) violation as a violation of DR 7-101(A)(2) (failing to carry out a contract of employment).

Steele never appeared at her disciplinary action hearings. During the proceedings, it was disclosed that the process server had located her in Atlanta, Georgia, and had served her with the various pleadings. The Hearing Committee then sent Steele a transcript of the hearing and copies of all exhibits and gave her an opportunity to submit a written rebuttal and any mitigating information. Steele did not respond. The Committee found violations of DR 6-101(A)(3), DR 1-102(A)(5), Rule 8.4(d) of the Rules of Professional Responsibility and the argued DR 7-101(A)(2). It initially recommended that Steele be suspended from practice in the District of Columbia for one year and that her reinstatement be subject to proof of fitness to practice law. The latter recommendation was based on evidence of Steele's "complete disregard for her obligations to her clients or the Court." The Committee subsequently added a recommendation for an order to pay restitution in the amount of $300.

On May 15, 1992, the Board issued its report, reducing the recommended suspension to sixty days and eliminating the fitness requirement. It also dismissed the original charge of violating DR 7-101(A)(1) and declined to uphold the Committee's findings of violation of DR 7-101(A)(2), which had been argued by Bar Counsel.¹ One Board member filed a dissenting opinion in which he explained why he would require proof of fitness.²

On May 25, 1992, while Bar Counsel's motion for reconsideration—advancing the position that the issue of specific charges under DR 7-101(A) should be remanded to the Committee and that the sanction should include the fitness requirement—was pending before the Board, Steele sent a letter to Bar Counsel. It stated in part:

I voluntarily ceased the practice of law in the District of Columbia in June 1991, and left the jurisdiction due to personal matters of an extremely private nature.

I understand that my client filed a complaint against me, but due to my uncertain living arrangements and personal problems at the time, I did not stay on top of the situation....

Although I do not ever intend to return to the District of Columbia or practice law again, I would like to address this matter and resolve it.... My life has recently improved from the personal problems I experienced in 1991, and I am now more emotionally stable.

Please advise me as to what steps, if any, I may take at this time.

Although Bar Counsel advised her of the pending matter before the Board and recommended she address her concerns to the Board, Steele never took further action regarding her conduct and the related charges.

Bar Counsel's motion for reconsideration was denied in an order signed by only the Chairman of the Board on Professional Responsibility. Counsel for the Board assured the court at oral argument that all members of the Board were aware of the contents of Steele's letter at the time the motion was denied.

At this juncture there is no dispute as to whether Steele committed the violations found by the Board, and we agree with those findings. The court's task is to decide whether to impose the recommended discipline, and whether to include with it a requirement of a showing of fitness as argued by Bar Counsel. As there is no challenge to the recommended sixty-day suspension and restitution, we will direct our discussion to the matter of the fitness requirement.

II.

The standard this court has applied in disciplinary proceedings is to adopt the Board's recommendations regarding sanction "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C.Bar R. XI, Sec. 9(g) (1992); see also In re Delate, 579 A.2d 1177, 1179 (D.C.1990); In re Hutchinson, 534 A.2d 919, 924 (D.C.1987) (en banc); In re Morris, 495 A.2d 1162 (D.C.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986).

In applying the first part of this standard, we have measured consistency between cases by comparing the gravity and frequency of the misconduct, any prior discipline, and any mitigating factors such as cooperation with Bar Counsel, remorse, illness, or stress. See In re Kennedy, 605 A.2d 600, 604 (D.C.1992) (per curiam); In re Lenoir, 585 A.2d 771, 774 (D.C.1991) (per curiam) (citing In re Hutchinson, supra, 534 A.2d at 924; In re Haupt, 422 A.2d 768, 771 (D.C.1980) (Haupt I); In re Smith, 403 A.2d 296, 303 (D.C.1979)).

The 1989 change in Rule XI, Sec. 3(a)(2), which for the first time allows a fitness requirement for a suspension of any length—not just suspensions over one year—is so recent that relatively few cases exist from which we can make comparisons to determine consistency or inconsistency.³ See In re Cooper, 613 A.2d 938 (D.C.1992) (Cooper II) (misappropriation under circumstances equivalent to simple negligence and admitted cocaine addictionmdash;sanction of suspension for six months and fitness requirement); In re Tinsley, 582 A.2d 1192 (D.C.1990) (pattern of carelessness and indifference to obligations to court and clients in six separate cases—sanction of suspension for one year and fitness requirement); In re Delate, supra, (counsel's virtual abandonment of conservatorship responsibilities in two cases and an unwillingness or inability to come to grips with responsibilities over broad range of activities over a long period of time—sanction of suspension for six months and requirement of proof of fitness); In re Greenspan, 578 A.2d 1156 (D.C.1990) (failure to attend meetings and supply information to Auditor-Master and to respond to Bar Counsel inquiries regarding these failures by counsel suspended in Maryland for dishonesty— sanction of suspension for 180 days and requirement of proof of fitness); and In re Rosen, 570 A.2d 728 (D.C.1989) (misrepresentation of material facts in applying for admission to Maryland bar—sanction of suspension for nine months and requirement of showing of fitness).

Since the adoption of the amendment, there have also been a number of cases in which suspensions of a year or less have not been accompanied by a fitness requirement. See, e.g., In re Ontell, 593 A.2d 1038, 1041 (D.C.1991) (neglect of two legal matters, including two separate instances of misrepresentation—suspension for thirty days); In re Santana, 583 A.2d 1011 (D.C.1990) (per curiam) (neglect of two separate legal matters, including failure to file documents, to communicate with clients and to notify clients of change of address— suspension for sixty days); ...