In re Yelverton

Citation105 A.3d 413
Decision Date24 December 2014
Docket NumberNo. 13–BG–844.,13–BG–844.
PartiesIn re Stephen T. YELVERTON, Respondent. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 264044).
CourtCourt of Appeals of Columbia District

Stephen T. Yelverton, pro se.

Hamilton P. Fox, III, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before FISHER and BECKWITH, Associate Judges, and RUIZ, Senior Judge.

Opinion

RUIZ, Senior Judge:

This case requires us to consider whether and how to sanction an attorney for a pattern of repetitive frivolous filings. Before us is a recommendation from the Board on Professional Responsibility (“Board”) that we find that respondent Stephen T. Yelverton violated Rules of Professional Conduct 1.1(a), 1.1(b), 3.1, and 8.4(d) in his representation of a witness in a criminal trial. The Board recommends a ninety-day suspension and imposition of a fitness requirement as a condition of reinstatement. We conclude that respondent's actions did not violate Rules 1.1(a) or (b), which require professional competence in the representation of clients, as there was no harm to the client. However, we agree with the Board's determination that respondent violated Rules 3.1 and 8.4(d), which forbid attorneys from making submissions to the court that are not well-grounded in law and fact, and engaging in conduct that seriously interferes with the administration of justice. We do not adopt the Board's recommendation that respondent be suspended for ninety days, and instead order a thirty-day suspension. We also add a requirement, as recommended by the Board, that respondent demonstrate fitness to practice before he may be reinstated to the practice of law.

I. Facts
A. Respondent's Actions Leading to Bar Counsel's Investigation

Respondent, a member of the bar of this court since 1979, represented the complaining witness in a criminal assault case.1 Following a bench trial held in August 2009, the judge credited the defendant over the complaining witness, and acquitted the defendant of the assault. Because the judge did not credit the complainant's testimony, and because respondent believed that defense counsel Kirk Callan Smith had told the judge that respondent's client was “a liar,” respondent became concerned that his client could face prosecution for perjury on the basis of his testimony in the criminal trial. These concerns led respondent to take the unusual step of seeking a mistrial and a new trial in the assault case, which the court denied on September 16, 2009. In its denial of the motion, the court explained that the defendant's constitutional right to be free from double jeopardy, once she was acquitted, barred a retrial.

Undaunted, respondent initiated a number of motions during the next four months. On September 23, respondent first moved to vacate the order denying the mistrial motion and to impose sanctions on defense counsel for, among other things, violating the Rules of Professional Conduct. Two days later, the trial court denied respondent's motions, calling them “frivolous.”2 Respondent then moved, on October 5, to vacate that denial, again asking the court to sanction defense counsel and to order him to “cease and desist from using [c]ourt processes to harass [the complaining witness].” That same day, respondent also moved to recuse the trial judge from the case, accusing him of harboring bias against his client and engaging in ex parte communications with the prosecutor. On November 2, respondent filed another motion to recuse, this time accusing the judge of ex parte communications with defense counsel. Defense counsel, for his part, also moved to sanction respondent and his client for abusive and unethical conduct. Although each new motion in this flurry was in some respect different from the last, each of respondent's submissions also included lengthy passages copied verbatim from previous motions, and frequently included the same affidavits. Whenever defense counsel opposed respondent's motions or sought additional time to respond to them, respondent moved both to strike those filings and to reply to them. On March 15, 2010, the trial court issued an order denying all of respondent's motions, characterizing the motions to recuse as “wholly without merit,” and the rest of his motions as lacking in legal or factual support. Although the trial court characterized both parties' submissions “in the kindest phrasing, [as] lengthy, repetitive, and rather casually styled,” the order concluded that [n]o relief in the form of sanctions for either party need, or will, be addressed by the court.”

Respondent then timely appealed the trial court's denial of his multiple motions to this court. The defendant moved to dismiss the appeal and requested sanctions against respondent. This court dismissed the appeal, citing cases in support of the well-established proposition that the victim of a crime lacks standing to appeal in criminal proceedings, and denied the motion for sanctions against respondent. Respondent's subsequent petitions for rehearing and rehearing en banc of the dismissal of his initial appeal were denied. Many filings later, we issued the following order sua sponte:

[T]he conduct of counsel for both appellant ... and cross-appellant ... raise serious concerns as to the propriety of actions taken and judgment exercised by both and the matter is hereby referred to Bar Counsel for investigation in that regard.
B. Bar Counsel's Investigation and Hearing Committee Proceedings

Acting on the court's referral, Bar Counsel investigated and ultimately charged respondent with violations of four Rules of Professional Conduct: Rule 1.1(a) and (b) (competence), Rule 3.1 (meritorious claims and contentions), and Rule 8.4(d) (misconduct).

In his response and supplemental response to Bar Counsel's Specification of Charges, respondent denied all charges against him. He also argued that Assistant Bar Counsel assigned to his case, Hamilton P. Fox III, should be disqualified because he had brought an unrelated civil suit against the District of Columbia, and that an independent counsel should be appointed to investigate ethics charges against defense counsel Smith. Respondent asked the Board to investigate Bar Counsel's actions and to dismiss the charges against him.3 Respondent also sought to remove the bar disciplinary proceedings to federal district court claiming that his constitutional rights were imperiled. See Yelverton v. Fox, 997 F.Supp.2d 1, 3 n. 2 (D.D.C.2013). When the removal request was dismissed for lack of jurisdiction, respondent appealed. The appeal was rejected. Id.; In re Yelverton, 2012 U.S.App. LEXIS 1715 (D.C.Cir. Jan. 30, 2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 332, 184 L.Ed.2d 196 (2012). Throughout, respondent continued to defend his actions in the Superior Court seeking a mistrial in the criminal assault case.

On August 24, 2012, following a hearing, the Ad Hoc Hearing Committee recommended dismissal of the charges, concluding that respondent had mistakenly—but sincerely—believed that his post-trial motions on his client's behalf would be effective to protect the client from a perjury charge. One committee member dissented, saying that he would have found violations of all four rules and recommended a thirty-day suspension and a fitness requirement. The Hearing Committee majority thought that it was a decisive consideration that respondent's errors did not prejudice his client. It also considered that respondent's many filings, though annoying, were unlikely to have seriously overburdened judges, were not filed with an intent to harass any party or to cause delay, and that the trial judge opted not to sanction respondent in the criminal case.4 Bar Counsel and respondent both filed exceptions to the Hearing Committee Report.

C. Report and Recommendation of the Board on Professional Responsibility

A hearing was held before the Board on November 29, 2012. Respondent's motions after argument led the Board to issue an order on February 5, 2013, prohibiting further filings. On July 30, 2013, the Board issued a Report and Recommendation to this court. The Board adopted the Hearing Committee's factual findings but rejected its legal conclusions, concluding instead that respondent violated all four rules as charged by Bar Counsel. It recommended a ninety-day suspension (as opposed to the dissenting Hearing Committee member's recommended thirty-day suspension) and imposition of a fitness requirement as a condition to reinstatement following suspension.

Respondent immediately filed exceptions to the Board's report with this court; Bar Counsel took no exception. Three weeks after the Board submitted its report, respondent filed suit in the United States District Court for the District of Columbia, naming Assistant Bar Counsel, the Board's Executive Attorney, and the Clerk of this court as defendants, seeking a preliminary injunction to stay the Board's Report and to enjoin this court from suspending him. The federal court denied the preliminary injunction. See Yelverton, 997 F.Supp.2d at 2. On September 12, 2013, respondent was suspended from practicing law in the District of Columbia pending the court's final action on the Board's recommendation.5

Pursuant to the court's briefing schedule, respondent and Bar Counsel filed their briefs with the court in October 2013. In the months that followed, respondent filed six motions with this court, some of which were largely verbatim copies of previously submitted filings. He moved to void his interim suspension as “a legal ity” on the theory that it was based on “off-the-record” accusations about his political beliefs and was therefore in violation of his due process rights. He filed a Demand for Recusal of Bar Counsel Senior Staff Attorney Lawrence Bloom from involvement in respondent's case, on the...

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    • May 31, 2018
    ...Ed. 2d 888 (1991). ¶ 43 However, " ‘baseless litigation is not immunized by the First Amendment Right to Petition.’ " In re Yelverton, 105 A.3d 413, 421 n.8 (D.C. 2014) (quoting In re Ditton, 980 A.2d 1170, 1173 n.3 (D.C. 2009) ). Once a respondent is "made aware that his motions were frivo......
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    ...115 L. Ed. 2d 888 (1991). However, "'baseless litigation is not immunized by the First Amendment Right to Petition.'" In re Yelverton, 105 A.3d 413, 421 n.8 (D.C. 2014) (quoting In re Ditton, 980 A.2d 1170, 1173 n.3 (D.C. 2009)). Once a respondent is "made aware that his motions were frivol......
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