Matter of Robertson, 91-SP-730.

• Decision Date: 07 July 1992
• Docket Number: No. 91-SP-730.,91-SP-730.
• Citation: 612 A.2d 1236
• Parties: In the Matter of Lawrence ROBERTSON, Respondent.
• Court: D.C. Court of Appeals

612 A.2d 1236

In the Matter of Lawrence ROBERTSON, Respondent.

No. 91-SP-730.

District of Columbia Court of Appeals.

Argued February 25, 1992.

Decided July 7, 1992.

Marion E. Baurley, Washington, D.C., for respondent.

Elizabeth A. Herman, Asst. Bar Counsel, Washington, D.C., for petitioner.

Before FERREN and SCHWELB, Associate Judges, and MACK, Senior Judge.

FERREN, Associate Judge:

This matter is before the court on the recommendation of the Board on Professional Responsibility that we suspend respondent from the practice of law in the District of Columbia for 90 days and order him to pay a former client $7,191.61 in restitution. Although neither respondent nor Bar Counsel opposed the Board's recommendation, the case was assigned to the regular calendar for oral argument. Neither party filed a brief in this court. Upon reading the Board's Report and Recommendation, however, we asked the parties to focus their argument on the issue of restitution. We now conclude that the Board's recommendation that we order respondent to pay $7,191.61 to a former client is premised on an erroneous interpretation of "restitution" under D.C. Bar Rule XI, § 3(b). We therefore do not adopt the recommendation, for it would require us to impose an impermissible sanction under our rules.

We agree, however, with the Board's uncontested findings that respondent violated Disciplinary Rules 6-101(A)(3) (neglect of a legal matter), 7-101(A)(1) (intentionally failing to seek the lawful objectives of a client), 7-101(A)(2) (intentionally failing to carry out a contract of employment for professional services), and 7-101(A)(3) (intentionally prejudicing or damaging a client during the course of the professional relationship)—as explained in relevant portions of the Board's report attached as an appendix to this opinion. Because the Board's recommendation of a 90-day suspension was coupled with a proposal that we order restitution, we cannot know what sanction the Board would have recommended if it had known its proposed restitution fell outside the limitations of Rule XI, § 3(b). Rather than remand for reconsideration of a proposed sanction, however, we believe it appropriate for this division of the court to impose the sanction, since imposition of sanctions is our responsibility in the first instance and we are in a position, on this record, to do so. Accordingly, in light of the Board's findings and the circumstances of this case, we order respondent's suspension from the practice of law for 120 days.

I.

According to the Board's report:

Respondent was retained by Mr. Russell Miller in March or April of 1984 to prepare and file Maryland and federal income tax returns for Mr. Miller for 1983. Mr. Miller was acquainted with Respondent through seminars they had attended together and through previous legal work undertaken by Respondent on behalf of Mr. Miller.

Mr. Miller provided Respondent with all of his relevant tax records and documents and did not keep copies. When Respondent did not complete work on Mr. Miller's 1983 returns in time to meet the April 1984 filing deadline, an extension was requested by Respondent and Mr. Miller. The extension expired without Mr. Miller's tax returns having been filed and without Respondent having communicated with Mr. Miller as to the status of the returns. Thereafter, Mr. Miller continued to file for extensions, not only for 1983, but also for 1984, 1985, 1986, 1987 and 1988. Mr. Miller believed he could not file complete and accurate tax returns for years subsequent to 1983 until his returns for that year were completed and his records returned to him.

From the fall of 1984 until Mr. Miller complained to Bar Counsel in 1989, Mr. Miller repeatedly communicated to Respondent his desire to have his 1983 tax returns completed. He forwarded all communications from the IRS concerning his tax returns to Respondent and was repeatedly assured by Respondent that the forms would be completed shortly. In 1987 Mr. Miller hired another attorney, Charles M. Shryock, III, to assist him in his efforts to have Respondent complete the tax forms for 1983 or return Mr. Miller's records. The tax forms were never prepared or filed by Respondent. Mr. Miller's tax returns for the years 1983-1985 were prepared and filed for him in December 1989 by an accountant engaged by Mr. Shryock, approximately one month after Respondent furnished Mr. Miller's records to Mr. Shryock.

In the five years Respondent retained Mr. Miller's records, Respondent never told Mr. Miller or Mr. Shryock that he required additional information in order to permit him to complete and file the 1983 returns. Instead, Respondent repeatedly told Mr. Miller and later Mr. Shryock that the work would be completed in a matter of weeks or days. When Respondent finally turned Mr. Miller's records over to Mr. Shryock, the accountant engaged by Mr. Shryock requested only one additional item of information, which Mr. Miller promptly provided.

Both Maryland and the IRS denied Mr. Miller's claims for refunds for 1983, 1984 and 1985 on the ground that they were filed more than three years after the returns were due to be filed. Mr. Shryock testified that the total amount of the denied claims was between $16,000 and $25,000. The record does not contain further support for that estimate. Bar Counsel's exhibits show that Mr. Miller claimed refunds and overpayment credits of $5,376.73 and $1,814.88 on his 1983 Maryland and federal returns, respectively, and that those claims were denied as untimely. Citations to record omitted.

The Hearing Committee recommended that the Board reprimand respondent and order him to make restitution. Respondent repeatedly had stated his intention to compensate Mr. Miller for losses respondent had caused. Respondent did not oppose a restitution sanction, nor did he suggest a specific sum for the restitution order.

II.

The Hearing Committee recommended a reprimand rather than a more severe sanction because of respondent's promise to "make reparations for any financial damage Mr. Miller might sustain by way of lost tax refunds." Because there was some ambiguity concerning the exact amount of Mr. Miller's loss, the Hearing Committee recommended that respondent submit a specific, written "restitution plan." Respondent apparently promised, but failed, to do so. The Board, therefore, properly considered respondent's failure to carry-out his promise when it recommended a sanction. See In re Solomon, 599 A.2d 799, 800-01 (D.C.1991). After reviewing previous decisions of this court imposing sanctions for similar violations, and after taking into account the fact that respondent had not been subject to prior discipline and that his misconduct related to a single client, the Board recommended a 90-day suspension. The Board also recommended "restitution" to enforce respondent's promise to pay Mr. Miller for his financial loss.

We agree with the Board that sanctions in similar cases have ranged from suspensions of 60 days to six months. See, e.g., In re Lawrence, 526 A.2d 931, 933 (D.C. 1986) (intentional failure to seek client's lawful objectives and intentional failure to carry out employment contract warrant 60-day suspension; listing similar cases in which court ordered suspensions of 90-days or six months). We also agree that there are certain aggravating circumstances we should consider in this case: the duration of respondent's misconduct, the economic damage the Hearing Committee found he knowingly caused his client, and respondent's failure to follow through on his promise to reimburse his client for financial losses attributable to respondent's ethical defaults. Because, however, we cannot adopt the other element of the Board's recommended sanction, restitution, for reasons stated in Part III below, we conclude that the most appropriate sanction, in light of previous cases, would be a 120-day suspension. See, e.g., In re Jamison, 462 A.2d 440, 442 (D.C.1983) (failure to carry out contracts of employment and neglect of legal matter warrant three-month suspension); In re Knox, 441 A.2d 265, 268 (D.C.1982) (neglect of legal matter warrants three-month suspension); In re Russell, 424 A.2d 1087, 1088 (D.C.1980) (serious neglect of client's case coupled with failure to cooperate with Bar Counsel warrants six-month suspension).

III.

D.C.Bar R. XI, § 3(b) empowers this court or the Board on Professional Responsibility to "require an attorney to make restitution either to persons financially injured by the attorney's conduct or to the Clients' Security Trust Fund (see Rule XII), or both, as a condition of probation or of reinstatement." In this case, in addition to recommending a suspension, the Board recommends requiring respondent to make "restitution" to Mr. Miller in the amount of $7,191.61, the total amount of the refunds and overpayment credits Mr. Miller claimed on his 1983 Maryland and federal income tax returns. Presumably, Mr. Miller would have received this amount from the state and federal governments but for the running of applicable limitation periods attributable to respondent's neglect of his professional obligations.

In recommending this amount of restitution, the Board appears to adopt a definition of "restitution" that both the Hearing Committee and Bar Counsel have proposed: restitution should aim at making the client whole. Because we find no support for this expanded concept of restitution in this court's previous disciplinary decisions, and because the Board's definition blurs the distinction between restitution and consequential damages, which are more appropriately determined in a civil adjudication, we cannot adopt the Board's recommendation.

In defining restitution the way it did, the Board relied primarily on dicta in a concurring opinion that no division of this court has adopted. In In re O'Donnell, 517 A.2d 1069 (D.C.1986), the court adopted the Board's recommendation that we suspend the respondent for...