In re White

• Citation: 11 A.3d 1226
• Decision Date: 20 January 2011
• Docket Number: Nos. 09-BG-1012, 10-BG-795.,s. 09-BG-1012, 10-BG-795.
• Parties: In re Lucille Saundra WHITE, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 463929).
• Court: Court of Appeals of Columbia District

11 A.3d 1226 In re Lucille Saundra WHITE, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 463929). Nos. 09-BG-1012, 10-BG-795. District of Columbia Court of Appeals. Submitted Oct. 26, 2010. Decided Jan. 20, 2011.

No brief was filed on behalf of respondent.

Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel, and Julia L. Porter, Senior Assistant Bar Counsel, were on the brief for the Office of Bar Counsel.

Before KRAMER and OBERLY, Associate Judges, and BELSON, Senior Judge.

PER CURIAM:

The Board on Professional Responsibility has filed two separate reports and recommendations with this court concerning respondent, Lucille Saundra White, arising from separate matters that occurred during the same period. In its first report, issued on August 20, 2009, the Board recommended that respondent be suspendedfor six months and be required to demonstrate fitness as a condition for reinstatement for violating Rule 1.11 of the District of Columbia Rules of Professional Conduct (conflict in successive government and private employment). Respondent filed exception to that report and recommendation of the Board in its entirety. Bar Counsel excepts to the Board's finding that it had not been proved that White violated Rule 8.4(d) (serious interference with the administration of justice). In a second report, as amended on July 28, 2010, the Board recommended that respondent be disbarred for violating Rule 3.4(a) (alteration of evidence); Rule 3.4(b) (falsification of evidence and false testimony); Rule 8.1(a) (false representation in connection with a disciplinary matter); Rule 8.4(b) (criminal act that reflects adversely on lawyer's honesty, trustworthiness, or fitness); Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation); and Rule 8.4(d) (serious interference with the administration of justice). Neither respondent nor Bar Counsel filed an exception with respect to that report and recommendation.

The two reports of the Board have been consolidated for review by this court. We adopt the Board's findings and its recommended sanction in the second matter referred to above and set forth in the July 28, 2010, Amended Report. We also adopt the Board's findings and recommended sanctions in the August 20, 2009, Report, other than the Board's determination that Bar Counsel had not proven that respondent violated Rule 8.4(d). Respondent has filed no briefs with this court in either matter.¹ We order that respondent Lucille Saundra White be disbarred.

I.Standard of Review

In a disciplinary case, this court accepts the Board's findings of fact "unless they are unsupported by substantial evidence of record." D.C. Bar R. XI, § 9(g); In re Pierson, 690 A.2d 941, 946-47 (D.C.1997). This court reviews the Board's legal conclusions de novo. In re Fair, 780 A.2d 1106, 1110-11 (D.C.2001). We 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.' " In re Cleaver-Bascombe, 986 A.2d 1191, 1194 (D.C.2010) (quoting D.C. Bar R. XI, § 9(h) (2006)). The Board, in turn, is required to accept the factual findings of the hearing committee that are supported by substantial evidence in the record, viewed in its entirety. In re Micheel, 610 A.2d 231, 234 (D.C.1992). "However, the Board owes no deference to the hearing committee's determination of 'ultimate facts,' which are really conclusions of law." Id.

II.August 20, 2009 Report

On August 20, 2009, the Board on Professional Responsibility concluded that respondent violated D.C. Bar Rule 1.11 (conflict in successive government and private employment), stemming from respondent's representation of Ms. Gladys Thomas. During respondent's tenure as head of the investigating unit at the District of Columbia Office of Human Rights ("OHR"), she had supervised the investigation of an age discrimination complaint filed by Ms. Thomas arising out of her discharge from a position with the Department of Consumer and Regulatory Affairs. The investigating agent had provided respondent with a draft Letter of Determination ("LOD") concerning Ms. Thomas's complaint in July 2002; OHR's final LOD advised Ms. Thomas that there was no probable cause to support her complaint.

Ms. Thomas pursued her age discrimination allegation by filing suit in the United States District Court for the District of Columbia on January 9, 2003, the same month that respondent was terminated from OHR. In an e-mail between Ms. Thomas's counsel, Ms. Janet Cooper, and respondent dated January 6, 2004, the two discussed entering a "co-counsel" relationship for Ms. Thomas's suit. In mid-December 2003, respondent had telephoned an unidentified representative at the D.C. Bar Ethics Counsel to inquire about engaging in this representation; however respondent provided only "a partial description of the relevant facts" during that call and specifically omitted her involvement with the Thomas case while she was at OHR. Thereafter, respondent participated in reviewing and editing court filings, including a draft motion on behalf of Ms. Thomas, and attended a deposition of a witness in the case, Bernard Ferguson. Following respondent's attendance at the Ferguson deposition on January 13, 2004, Michael Bruckheim, the attorney representing the District, contacted Ms. Cooper to complain about respondent's involvement as a violation of Rule 1.11; he filed a motion to disqualify respondent and Ms. Cooper after Ms. Cooper refused to withdraw. Ms. Cooper and respondent each filed an affidavit asserting that respondent had not played a substantive role concerning Ms. Thomas's case while at OHR.

On June 29, 2004, U.S. District Court Judge Royce C. Lamberth granted the motion to disqualify both respondent and Ms. Cooper, on the basis that respondent was the supervisor overseeing the investigation of Ms. Thomas's claim while she was at OHR. Bar Counsel filed charges against respondent on July 6, 2005, alleging that she had violated Rule 1.11 and Rule 8.4(d) (serious interference with the administration of justice), and evidentiary hearings followed from December 2005 through April 2006.

On April 9, 2007, Hearing Committee Number Five found that respondent's representation of Ms. Thomas was adverse to the District of Columbia government, and was on a matter in which respondent had been personally and substantially involved when she worked in OHR. However, the Committee concluded that Bar Counsel had not proven a violation of Rule 8.4(d).

Bar Counsel filed a brief in support of its exception to the conclusion regarding Rule 8.4(d) on June 15, 2007. Respondent filed her exceptions to Hearing Committee Number Five's report on June 21, 2007, which was well past an extended due date of May 24, 2007. Oral argument was scheduled on June 21, 2007, but respondent failed to appear. On July 2, 2007, the Board issued an order accepting respondent's lodged brief for filing but denied her request to reschedule oral argument.

On August 20, 2009, the Board issued a report agreeing with the Hearing Committee that respondent had violated Rule 1.11 and that Bar Counsel had not proven a violation of Rule 8.4(d), and recommended that respondent be suspended for six months and be required to demonstrate fitness as a condition of reinstatement. On November 9, 2009, this court suspended respondent pending final action on the Board's report. On December 21, 2009, Bar Counsel filed with this court a Brief in Support of its Limited Exception to the Board on Professional Responsibility's Failure to Find that Respondent also Violated Rule 8.4(d). In its brief, Bar Counsel, like the Board, recommends that respondent be suspended for six months for these violations.

We adopt the Board's conclusion as to the Rule 1.11 violation, but disagree with the Board's determination concerning Rule 8.4(d). We incorporate the Board's report of August 20, 2009, herein as set forth in Appendix A.²

To establish a violation of Rule 8.4(d), Bar Counsel must show (1) that the attorney acted improperly in that the attorney either " '[took] improper action or fail[ed] to take action when ... he or she should [have] act [ed]'; (2) that the conduct involved 'bear[s] directly upon the judicial process ( i.e., the "administration of justice") with respect to an identifiable case or tribunal'; and (3) that the conduct 'taint[ed] the judicial process in more than a de minimis way,' meaning that it 'at least potentially impact[ed] upon the process to a serious and adverse degree.' " In re Owusu, 886 A.2d 536, 541 (D.C.2005) (quoting In re Hopkins, 677 A.2d 55, 60-61 (D.C.1996)) (alterations in original).

The Board concluded that respondent's actions did not clearly satisfy these three criteria. It reasoned that though Judge Lamberth disqualified respondent, a "disqualification motion, without more, does not support a finding that the conduct was a serious interference with the administration of justice." See In re Hallmark, 831 A.2d 366, 375 (D.C.2003) (requiring more egregious conduct than burden on court's administrative process). The Board also noted that Bar Counsel was unable to cite any case in which a Rule 1.11 violation standing alone supported a Rule 8.4(d) violation. It was the Board's view that it would have "a pernicious effect on the administration of justice and the representation of individual clients [ ] [i]f the unsuccessful defense of a motion to disqualify were held to constitute sanctionable misconduct...." The Board reasoned that such a holding might lead "lawyers with meritorious defenses [to] ... withdraw unnecessarily, rather than risk exposure to disciplinary charges."

Board member Mercurio, joined by member Bolze, dissented from the Board's conclusions insofar as they pertained to Rule 8.4(d). He stated that the Board's conclusion fails to recognize that respondent's conduct met...