Matter of Dwyer, DP-16-'75.

• Decision Date: 09 February 1979
• Docket Number: No. DP-16-'75.,DP-16-'75.
• Parties: In the Matter of John J. DWYER, an Active Member of the Bar of this Court.
• Court: D.C. Court of Appeals

Page 1

399 A.2d 1

In the Matter of John J. DWYER, an Active Member of the Bar of this Court.

No. DP-16-'75.

District of Columbia Court of Appeals.

Argued July 28, 1976.

Decided February 9, 1979.

Mark P. Friedlander, Washington, D. C., for respondent.

Fred Grabowsky, Washington, D. C., Bar Counsel, for The Disciplinary Bd.

Before HARRIS and MACK, Associate Judges, and REILLY, Chief Judge, Retired.

REILLY, Chief Judge, Retired:

This case is before us on a petition on The Disciplinary Board (now known as the Board of Professional Responsibility) recommending to this court that it suspend a member of the bar, John J. Dwyer, from the practice of law for a period of nine months and that reinstatement at the end of that period should not be automatic, but conditioned upon proof of repayment of some $1,210.00 to the family of Nathaniel B. Henderson, a defendant in a trial for murder in the United States District Court, whom Dwyer had represented as defense counsel in preliminary proceedings as well as in the trial itself. The recommendation is predicated on a finding that respondent, although appointed as counsel under the Criminal Justice Act¹ and thereby entitled to a fee from the government for his services under the provisions of that statute, solicited and obtained an additional fee from Henderson's family as a condition for continued representation at the murder trial.

This finding of the Board was based on a report of a hearing committee, appointed under Rule XI, § 4(3) of the Grievance and Disciplinary Rules of this court, which conducted a hearing on the formal charges presented by Bar Counsel. Respondent Dwyer filed exceptions to the report which had recommended a six-months' suspension (to be reduced to three months on reimbursement of the money collected). In overruling these exceptions the Board, with some additional comments of its own, accepted the findings of fact and conclusions of the hearing committee, but by a 4-1 vote (one member dissenting and two abstaining) recommended that the period of the proposed suspension should be increased from six months to nine (with reinstatement to be automatic on proof of restitution).

The fact that the $1,210.00 was paid to respondent in two separate installments just prior to the trial is undenied. He gave receipts for both payments and in his answer admitted such payments and also that subsequently he had received the sum of $750.00 pursuant to an authorization of the trial court under the Criminal Justice Act for his services in the murder case. Respondent denied, however, that the money paid him by the Henderson family was for his representation, saying the money was voluntarily tendered him as payments on account for an unpaid debt Henderson had incurred for prior services provided by a former partner of the firm, who had been Henderson's defense counsel in an earlier unrelated case — an indictment for rape, twice tried in a Maryland county court and ultimately ending in acquittal.

The complaint which eventually resulted in this disciplinary proceeding was filed by Nathaniel Henderson in August of 1974, one month after beginning a prison term imposed by Judge Pratt in July of that year, after his conviction in the homicide case on June 20, 1974. The complaint stated: "I believe I am entitled to the refund of the fee paid to Mr. Dwyer as an appointed attorney under the Criminal Justice Act." He had previously expressed dissatisfaction with respondent in open court after the guilty verdict was returned, and said: "I want my money back."² Henderson was not called as a witness at the hearing, nor was any deposition taken from him. Bar Counsel told the hearing committee that the complainant was in prison.

The record shows that Henderson's first contact with the Dwyer law firm, a partnership then called Dwyer and Lamb, occurred in 1970 or 1971, when Maryland authorities sought a writ of rendition on a rape charge. Jean F. Dwyer, a partner, agreed to represent him with the assistance of an associate in the firm, David Lamb, a member of the Maryland bar. Lamb was not present when the fee was set. Mrs. Dwyer's recollection was that she quoted a figure of $1,500.00 to $2,500.00, depending upon the time the case would require, but kept no record of this conversation. The case turned out to be a protracted one. She filed several motions for a preliminary hearing which were denied, and subsequently moved successfully for dismissal of the indictment. After a new indictment was returned, she represented Henderson at two successive trials. In the first, the jury became deadlocked and was discharged; in the second, there was a verdict of acquittal. Records of the old firm, which Bar Counsel arranged to be produced, disclosed that before the Dwyer and Lamb partnership³ was dissolved, only $510.00 of the fee was paid. Mrs. Dwyer testified that, prior to the payments challenged in the complaint, Henderson still owed a balance of $1,500.00 for the rape case.

While the second Maryland trial was still pending, Henderson was arrested and charged in the District with the murder of a female neighbor. In view of the fact that he was substantially in arrears on payments for the Maryland case, Mrs. Dwyer suggested to Henderson and his wife, Yvonne, who had made some payments in his behalf, that he file an affidavit to qualify as an indigent under the Criminal Justice Act. He did so. Subsequently, Mrs. Dwyer was appointed under that Act, but after she became a federal magistrate, she arranged, with Henderson's approval, that her husband, the respondent, be appointed in her stead. At that time, the United States courts here had jurisdiction in homicide cases.

After his Maryland acquittal, Henderson or his family raised enough money to obtain his release from the District jail on a surety bond in the amount of $6,000.00. Respondent, relying apparently on his client's assurance that he was not present at the scene of the crime, arranged with the United States Attorney for a polygraphic test, which Henderson failed. Then, faced with trial in the District Court, Henderson disappeared before the date he was scheduled to appear (sometime in January of 1973), and a bench warrant was issued. He did surrender about 14 months later. According to respondent, he was immediately notified by Magistrate Burnett that Henderson was again in custody, and went to court to represent him. On this occasion a trial date was set. On June 18, 1974, respondent appeared to represent him at the trial. Henderson was convicted and sentenced. He later pleaded guilty to charges stemming from his flight from the jurisdiction, and Judge Pratt imposed concurrent prison terms in July 1974.

Respondent thereafter submitted a voucher under the Criminal Justice Act for his services. The voucher, received in evidence, discloses that respondent claimed a balance due of $925.00 for his services, noting a prior payment of $1,000.00. The trial judge approved payment of $750.00 in January, 1975, while the complaint was still pending before The Disciplinary Board⁴

Although complainant Henderson did not appear at the hearing, Yvonne Henderson, his wife, testified that on the day Henderson came out of hiding and surrendered, she telephoned respondent, who told her that he was no longer responsible for her husband's case and that she then asked him if he would be willing to take his case for a fee, and was told that if she came to his office he would discuss it. A day or two later, she visited his office with her father-in-law, Lynwood Henderson, and testified that respondent said he would take the case for $1,500.00, the sum of $500.00 to be paid the next week and the balance within 60 days.

She further testified that about a week later⁵ she visited respondent's office again, this time accompanied by her mother-in-law, Mrs. Emma J. Gray,⁶ who turned over in checks and cash some $510.00 to respondent. On the day of the trial, June 22, 1974, Mrs. Gray paid John Dwyer an additional $700.00, including a check for $200.00, drawn by Yvonne and returned by the drawee bank to the payee as there were no funds to cover it. She told the committee that after the trial she reimbursed respondent for the dishonored check, but never received bills for the unpaid balance of the sum she said had been agreed upon. The witness also testified that in addition to her contributions and Mrs. Gray's, she had also collected the money for the payments from Henderson's father and Mrs. Ford, a sister.

In answers on direct examination, Mrs. Henderson stated that respondent never mentioned a still existing debt for the Maryland case, although she said that they had originally agreed to pay Mrs. Dwyer $1,500.00. She asserted that all but $300.00 of this amount had been paid. Later she told a member of the committee that it was Mrs. Dwyer who had told her that only $300.00 was still due.⁷ On cross-examination, respondent's counsel was prevented from eliciting answers to questions concerning what contacts she had with her husband in the 14-month interval after Henderson had absconded — the chairman of the committee sua sponte invoked a claim of privilege on her behalf — or any conversations with him later about the basis of his post-conviction complaint respecting the money paid to respondent.

Respondent, on the stand, gave quite a different version of the crucial telephone call. He said that when Mrs. Henderson informed him that her husband had turned himself in, he told her that he had learned of this from Magistrate Burnett and that a date for a hearing had been set, that he could not accept money because the government was going to pay him for his services, and that having already done his preliminary work, he was prepared to go to trial. Then, expressing some displeasure at Henderson's flight, "when we had the case beat", he asked why Henderson had run away. He was told that the defendant was afraid respondent would hold his unpaid debt to...