In re Stiller, 95-BG-909.

• Citation: 725 A.2d 533
• Decision Date: 25 February 1999
• Docket Number: No. 95-BG-909.,95-BG-909.
• Parties: In re Barry C. STILLER, Respondent, A Member of the Bar of the District of Columbia Court of Appeals.
• Court: Court of Appeals of Columbia District

725 A.2d 533

In re Barry C. STILLER, Respondent,

A Member of the Bar of the District of Columbia Court of Appeals.

No. 95-BG-909.

District of Columbia Court of Appeals.

Argued May 7, 1997.

Decided February 25, 1999.

Earl J. Silbert, with whom Charles B. Wayne, Washington, DC, was on the brief, for respondent. Steven C. Tabackman, also entered an appearance for respondent.

Leonard H. Becker, Bar Counsel, with whom Wallace E. Shipp, Jr., Deputy Bar Counsel, was on the brief, for petitioner, the Office of Bar Counsel.

Before WAGNER, Chief Judge, TERRY, Associate Judge, and PRYOR, Senior Judge.

TERRY, Associate Judge:

In early 1987, respondent Stiller, a member of our bar, received a legal fee of $135,000 for the defense of a client in a federal drug case. The fee was paid in cash. He subsequently made a series of bank deposits, also in cash, in amounts of less than $10,000 each, thereby evading statutory requirements imposed on banks to report large currency transactions. The Board on Professional Responsibility ("the Board"), in Bar Docket No. 430-88, concluded that Mr. Stiller had acted dishonestly in violation of Disciplinary Rule (DR) 1-102(A)(4), and Bar Counsel recommended accordingly that he be publicly censured for engaging in dishonest conduct. Before this court Mr. Stiller claims that his actions were not dishonest because he was unaware that structuring bank deposits was a crime, and because he had no duty to disclose to the government that he had received a sizable cash legal fee.

Mr. Stiller was also charged with several other instances of misconduct in Bar Docket Nos. 159-89, 317-92, 538-92, 85-94, and 298-95. Those cases involved, inter alia, neglect and failure to provide competent representation, intentional failure to seek the lawful objectives of a client, and attempting to influence a juror by improper means.¹ With respect to those five cases, the Board has recommended that he be suspended for one year and demonstrate fitness as a condition of reinstatement, and that he make restitution to his clients in two of those cases. Mr. Stiller has not challenged either the Board's findings of fact in the other five cases or its recommended sanction; accordingly, we adopt the Board's recommendation, suspend him for a year, and direct that he make restitution. That sanction, however, does not encompass the Board's finding of a violation in Bar Docket No. 430-88 (the subject of this opinion), which Mr. Stiller ardently contests. Thus, even though the Board tells us that its recommended sanction in the other five cases "would be the same regardless of whether this particular violation had been found," we must still decide whether Mr. Stiller engaged in "dishonest" conduct within the meaning of the rule. We conclude that he did not.

I

Mr. Stiller has been a member of the District of Columbia Bar since 1969 and has been in private practice since 1975. Approximately sixty percent of his practice has consisted of defending persons charged with ordinary street crimes.

Fernando Luna was one of Mr. Stiller's clients in the mid-1980s. In early 1987, Luna's uncles, Eliezer and Diego Hoyos, were indicted for drug trafficking in the United States District Court for the Eastern District of Virginia. Luna retained Stiller to represent them. Mr. Stiller, together with local Virginia counsel, ultimately represented Eliezer Hoyos only. The legal fees for Mr. Stiller and the other attorneys who were to assist him in the defense of Eliezer were to be paid by the Hoyos family in Colombia; Gilberto Hoyos, a brother of the defendants, was to arrange for payment.

Because Mr. Stiller preferred that the payment be made by wire transfer rather than cash, he asked his secretary to obtain information about wire transfers from two local banks, Riggs National Bank and National Savings and Trust Company (NS & T). Eliezer Hoyos advised Mr. Stiller that he was reluctant to use a wire transfer, and Gilberto Hoyos told him that the legal fees would have to be paid in cash.² Stiller apparently acquiesced, for between January 30 and early March 1987, the Hoyos family delivered $135,000 in cash³ to Mr. Stiller in three separate payments of $20,000, $25,000, and $90,000. Stiller was aware, through conversations with other criminal defense lawyers, that a deposit of more than $10,000 in cash would cause the bank to file a report of the transaction with the federal government which might result in forfeiture of the legal fees. In his testimony before the hearing committee, Mr. Stiller claimed that another reason for making deposits of less than $10,000 was that evidence of a large cash fee might be used against his client at trial.

Mr. Stiller opened a special escrow account in his own name at NS & T to receive the Hoyos fees. From early February to mid-April 1987, he deposited in that account approximately $90,000 of the money he had received, in twelve separate deposits ranging in amounts from $750 to $9,000. The rest of the money from the Hoyos family was paid by Mr. Stiller directly to the other attorneys involved in the case, to third parties who provided services in connection with the representation, and to the operating account of Mr. Stiller's law firm.

Mr. Stiller claimed that he was unaware of any law at the time that made it a crime to make bank deposits in amounts of less than $10,000 for the purpose of evading statutory bank reporting requirements. He asserted that it was not until February or March 1989, about two years later, that he first learned from another attorney that there was such a statute. That attorney also informed Stiller of the need to file a Form 8300 with the Internal Revenue Service (IRS),⁴ which he later filed.

This matter came to the attention of the disciplinary authorities in November 1988 when Eliezer Hoyos, now represented by a new attorney, filed a complaint with Bar Counsel. Hoyos alleged that Mr. Stiller had failed to account for some of the legal fees and had not earned the portion of the fees that were paid to his firm. In July 1987, Fernando Luna, on the advice of counsel, had surreptitiously tape-recorded a conversation with Mr. Stiller at his law office. In that conversation Stiller told Luna that he was structuring the payments so as not to deposit more than $10,000 at one time: "we couldn't put more than ten thousand dollars in the bank at a time, only 9900, so that . . . we wouldn't have to report it to the government. So we wouldn't have his funds seized . . . ."

After an investigation, Bar Counsel charged Mr. Stiller with violating DR 1-102(A)(3) (which prohibits conduct involving moral turpitude) and DR 1-102(A)(4) (which prohibits conduct involving dishonesty) when he structured the bank deposits in amounts of less than $10,000 each in order to avoid triggering the bank reporting requirements. Bar Counsel further alleged that Mr. Stiller's conduct was unlawful in that it violated the statutory prohibition on structuring, 31 U.S.C. § 5324(3),⁵ as well as 18 U.S.C. § 1001, a general provision that, among other things, makes it a crime to falsify or conceal "a material fact" from an agency of the United States government.

At a hearing on these charges before a hearing committee of the Board, Bar Counsel's principal witness was Fernando Luna. The tape recording of the conversation that he had had with Mr. Stiller was introduced into evidence, and Mr. Luna authenticated a transcript of that recording. Luna also testified that, during the conversation, Mr. Stiller showed him photocopied materials which related that drug money paid to attorneys for legal fees in other cases had been seized from those attorneys.

In addition to his own testimony, Mr. Stiller offered the testimony of two expert witnesses. William Moffitt, a criminal defense attorney and the Director of the National Association of Criminal Defense Lawyers, testified that he knew of no ethical rules that would prohibit acceptance of a large cash fee from a client charged with a crime. Moffitt also acknowledged, however, that although a lawyer has a duty to inquire as to the source of the cash fee "to the extent that it might affect the client's case," the lawyer also bears the risk that the fee, whether paid in cash or not, may be subject to forfeiture as a result of the Supreme Court decision in Caplin & Drysdale v. United States, 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989).

Mr. Moffitt testified that before January 27, 1987, the effective date of 31 U.S.C. § 5324, it was a common practice among criminal defense lawyers who received substantial cash payments of legal fees to deposit such fees in their bank accounts in amounts of less than $10,000, in order to avoid triggering the bank reporting requirements contained in the Bank Secrecy Act of 1970. At some point in the mid-1980's, Mr. Moffitt became aware that money laundering legislation had been introduced and was being considered in Congress. Moffitt testified nevertheless that during the ninety-day period following January 27, 1987 (the period when Mr. Stiller made the deposits at issue here), a reasonable criminal defense lawyer with a street crime practice who did not regularly receive cash fees in excess of $10,000⁶ would not have known of the enactment of 31 U.S.C. § 5324, nor would such an attorney have been aware that the structuring of cash deposits to avoid triggering the bank reporting requirements was now, for the first time, a criminal offense.

Mr. Stiller's other expert witness was Charles Morley, a former IRS special agent and currently the head of an investigative firm in Arlington, Virginia, that advised the United States and other governments on money laundering, the Bank Secrecy Act, and related matters. Morley testified that the anti-structuring provisions of the Money Laundering Control Act of 1986—i.e., 31 U.S.C. § 5324—were virtually unknown to the public at large for a substantial period of time after the law was passed;...