In re Ukwu, 05-BG-788.

• Decision Date: 21 June 2007
• Docket Number: No. 05-BG-788.,05-BG-788.
• Parties: In re Lloyd F. UKWU, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 420617).
• Court: D.C. Court of Appeals

926 A.2d 1106

In re Lloyd F. UKWU, Respondent.

A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 420617).

No. 05-BG-788.

District of Columbia Court of Appeals.

Argued April 4, 2007.

Decided June 21, 2007.

Abraham C. Blitzer, Washington, DC, for respondent.

Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Bar Counsel, and Traci M. Tait, Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Elizabeth J. Branda, Executive Attorney, for the Board on Professional Responsibility.

Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and SCHWELB, Senior Judge.

SCHWELB, Senior Judge:

Having found that Respondent, Lloyd F. Ukwu violated several Rules of Professional Conduct in his representation of five different clients, the Board on Professional Responsibility, through its counsel, has proposed that Respondent be suspended from practice for two years and that reinstatement be conditioned upon proof of fitness to practice and upon payment of restitution, with interest, to three of his clients. This proposal modifies the Board's earlier recommendation of a one-year suspension with the same conditions; the modification is based on legal developments since the Board filed its Report. We adopt the Board's recommendation as modified.

I.

Respondent was admitted to practice in the District of Columbia on October 13, 1989. Much of his practice has consisted of the representation of foreign nationals in immigration matters. On December 10, 2003, and January 14, 2004, Bar Counsel charged Respondent with violations of various Rules of Professional Conduct in relation to his representation of five clients: Michael Madagu, Malinda Davies, Owanate Davies,¹ Toyin Asegieme, and Esther Tembi. Specifically, Mr. Ukwu was charged with violating several Rules requiring an attorney to represent his clients competently;² with intentionally neglecting the matters of all five of his clients;³ with failing to "act with reasonable promptness" in representing his clients,⁴ with failing to communicate to a client the basis for his fee;⁵ with violation of his duty of candor toward a tribunal;⁶ with engaging in conduct involving dishonesty;⁷ and with conduct that seriously interfered with the administration of justice.⁸

Respondent denied all of Bar Counsel's allegations, and an evidentiary hearing was held before an Ad Hoc Hearing Committee on April 13-14, 2004 and on June 1-2 2004. On December 28, 2004, the Committee issued a comprehensive Report and Recommendation in which it found that Respondent had failed to provide competent representation, in violation of Rules 1.1(a), 1.1(b), 1.3(a) and 1.4(a), to any of his five clients. The Committee also found, solely with respect to the representation of Esther Tembi, that Respondent had engaged in dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c), and in intentional misconduct, in violation of Rules 1.3(b), 1.4(b), and 3.3(a)(1). The Hearing Committee recommended that Mr. Ukwu be suspended from practice for eighteen months, and that his reinstatement be conditioned upon proof of his fitness to practice and upon payment of restitution, with interest, to Michael Madagu, Toyin Asegieme, and Esther Tembi.

Both Bar Counsel and Respondent filed exceptions to the Hearing Committee's recommendation. On July 29, 2005, the Board on Professional Responsibility filed a detailed Report and Recommendation, a copy of which is attached to this opinion. The Board adopted most of the Hearing Committee's findings, but concluded, on the basis of the facts found by the Hearing Committee, that Bar Counsel had proved violations by Respondent of two additional Rules. Specifically the Board found that Mr. Ukwu had failed to act with reasonable promptness, as required by Rule 1.3(c), and that he had engaged in conduct that seriously interfered with the administration of justice, in violation of Rule 8.4(d). Although the Board found a greater number of violations by Respondent than the Hearing Committee did, it recommended more lenient discipline than that proposed by the Committee. The Board proposed that Mr. Ukwu be suspended from practice for one year, and that reinstatement be conditioned on proof of fitness and on payment of restitution with interest to three clients, as proposed by the Hearing Committee.⁹

Respondent filed exceptions to the Board's Report and Recommendation, contending that Bar Counsel had failed to prove a violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), that the proposed discipline was too harsh, and that Respondent should receive a suspended sanction conditioned on a term of probation.¹⁰ Bar Counsel likewise filed exceptions contending, inter alia, that Respondent had intentionally prejudiced the interests of all five of his clients, in violation of Rule 1.3(b); that he had engaged in dishonesty, fraud, deceit and misrepresentation not only vis-a-vis Esther Tembi, but also in his representation of Owanate Davies and Toyin Asegieme, in violation of Rule 8.4(c); that he had seriously interfered in the administration of justice in his representation of Michael Madagu, in violation of Rule 8.4(d); that he had failed to act with candor to the tribunal in his representation of Ms. Asegieme, in violation of Rule 3.3(a)(1); and that Respondent should either be disbarred or suspended from practice for three years, with reinstatement conditioned upon proof of fitness and payment of restitution with interest.

In our view, the Board's Report taken as a whole, contains a comprehensive, thoughtful and balanced assessment of the charges against Mr. Ukwu. We agree with much, but not with all, of the Board's analysis. Specifically, in order to avoid duplication, we adopt the Board's Report, except to the extent that it is inconsistent with our discussion, in Parts II, III and IV of this opinion, of issues relating to dishonesty, intent, and the appropriate sanction.¹¹

II. RULE 8.4(c): DISHONESTY, FRAUD, DECEIT AND MISREPRESENTATION

Respondent contends that he did not violate Rule 8.4(c) vis-a-vis any of his clients, and that the Hearing Committee and the Board erroneously found that he had failed to comply with this Rule in his representation of Ms. Tembi. Bar Counsel argues that the Committee and the Board should have found violations of Rule 8.4(c) not only as to Ms. Tembi, but also in the representation of Owanate Davies and Ms. Asegieme. We accept the findings of the Board and the Hearing Committee as to Respondent's conduct while representing Owanate Davies. We think that further elaboration is required, however, in the cases of Ms. Tembi and Ms. Asegieme.

A. Esther Tembi

The finding by the Board that Respondent had violated Rule 8.4(c) in his representation of Ms. Tembi was based primarily on the decision of the Hearing Committee to credit the testimony of Ms. Tembi and her friend, Doris Yunmbam, who testified for Bar Counsel, and not that of Respondent, who took the stand on his own behalf. Briefly, Ms. Tembi and Ms. Yunmbam testified that Ms. Tembi had paid Mr. Ukwu $1200 in counsel fees, an amount which had been collected for Ms. Tembi from members of the Cameroonian community. According to Ms. Yunmbam, Mr. Ukwu had counted the money in the women's presence. Respondent, on the other hand, denied that he had ever received the $1200. The Committee also found that Respondent had never written, and that Ms. Tembi had never received, certain letters allegedly warning Ms. Tembi that Respondent would withdraw from her case unless Ms. Tembi paid the $1200.¹²

The Hearing Committee having credited the two women and disbelieved Mr. Ukwu, the Board's ultimate findings on the issue were supported by substantial evidence. Accordingly, we sustain the finding of the Board that Respondent violated Rule 8.4(c) vis-a-vis Ms. Tembi.¹³

B. Ms. Asegieme

Either Respondent or an unlicensed assistant in Respondent's office drafted a letter dated January 6, 1999, signed by George Udeozor, Chief Executive Officer of Optimum Care Medical Center, Inc., and addressed to the Immigration and Naturalization Service (INS). This letter read, in pertinent part, as follows:

Re: Employment Verification for Toyin Asiegeme [sic]

Dear Sir or Madam:

We wish to confirm that Ms. Toyin Aseigeme [sic] referenced above, is currently employed full time by our clinic, and has been since February 1, 1998. Ms. Asiegeme [sic] is a Registered Nurse who has carried our [sic] her duties diligently. Her rate of pay at this time is $18.00 per hour.

Should you have any further questions, you may contact the undersigned.

Sincerely,

Optimum Care Medical Center, LLC

It is undisputed that the contents of this letter were false.¹⁴ Ms. Asegieme was not employed by Optimum on January 6, 1999, nor had she been employed there on February 1, 1998, as asserted in the letter, or at any other time. She had not carried out her duties "diligently," for she had no duties to carry out. Her rate of pay was not $18.00 per hour; indeed, Optimum was not paying her anything.

The Hearing Committee found that this letter "was submitted to INS by Ms. Asegieme pursuant to Respondent's instruction, when she was in fact not then currently employed." The Board, in its Finding of Fact No. 65, wrote that Respondent "assur[ed] Ms. Asegieme that she should not be concerned about presenting INS with a letter on Optimum Care Medical Center, LLC letterhead that stated she was currently employed by Optimum — her erstwhile sponsor — when in fact she was not currently so employed." (Emphasis added.) Ms. Asegieme testified unequivocally that Respondent was aware that she was not employed by Optimum, that she expressed her concern to him about the untruthfulness of the statements in the letter, but that Ukwu simply told her not to worry about it.

In spite of the presentation to the INS, at Respondent's direction, of this totally false...