Matter of Smith

• Decision Date: 13 June 1979
• Docket Number: No. DP-33-77/S-57-79.,DP-33-77/S-57-79.
• Citation: 403 A.2d 296
• Parties: In the Matter of Conrad P. SMITH, a Member of the Bar of the District of Columbia Court of Appeals.
• Court: D.C. Court of Appeals

403 A.2d 296

In the Matter of Conrad P. SMITH, a Member of the Bar of the District of Columbia Court of Appeals.

No. DP-33-77/S-57-79.

District of Columbia Court of Appeals.

Argued April 9, 1979.

Decided June 13, 1979.

Robin Alexander Smith, Asst. Bar Counsel, Washington, D. C., with whom Fred Grabowsky, Bar Counsel, Washington, D. C., was on the brief, for Bd. on Professional Responsibility.

Rohulamin Quander, Washington, D. C., for respondent.

Before NEWMAN, Chief Judge, and KELLY and KERN, Associate Judges.

NEWMAN, Chief Judge:

Following investigations and hearings, the Board on Professional Responsibility (the Board) found that Conrad P. Smith (respondent), a member of the Bar of the District of Columbia Court of Appeals, had violated several provisions of the Rules of Professional Conduct, see D.C.App.R. X, in two separate cases. Pursuant to D.C. App.R. XI, Sec. 7(3), the Board has submitted to this court its recommendations that respondent be suspended from the practice of law for eighteen months and that he be required to make restitution of $280 to Georgia Scales, one of the complainants. In Part I, we review the findings, conclusions, and recommendations of the Hearing Committee, and of the Board. In Part II, we consider whether the Board acted improperly by reinstating a charge against respondent that was brought to light in the course of a hearing on another charge. In Part III, we consider whether the Board's findings are supported by an adequate evidentiary foundation in the record, and, in Part IV, we consider whether the sanctions recommended by the Board are appropriate. We affirm the Board's findings and conclusions, and we conclude that the sanctions recommended by the Board are appropriate.

I

The Scales Case — Docket No. 23-76

Shortly after the death of her father, Georgia Scales approached respondent to obtain his services in determining whether her father had left any assets. Respondent did not commit himself to represent Ms. Scales when they met in February 1973. Shortly after that meeting respondent made a preliminary investigation and concluded that Ms. Scales' father had not left sufficient assets to warrant proceeding further. Nonetheless, on May 26, 1973, respondent wrote Ms. Scales that he was "prepared to move ahead with this action," but that he would need a $280 retainer in order to pay "legal filing fees and other disbursements." Ms. Scales sent a money order for $280, and respondent wrote back that he would proceed with the investigation.

Respondent did no further work on the matter and apparently avoided any contact with Ms. Scales. Ms. Scales made numerous unsuccessful attempts to reach respondent by telephone. In May 1975, Ms. Scales wrote a letter demanding information about the status of respondent's investigation. Respondent received the letter but did not reply. In September 1976, Ms. Scales retained another lawyer to make inquiries into the matter for her, and he filed a complaint against respondent with the Board on her behalf.

After a preliminary investigation, respondent was charged formally with violating Disciplinary Rules 6-101(AX3)¹ and 7-101(A)(1) & (2).² The matter was referred to a Hearing Committee. At the hearing on October 20, 1977, respondent, who appeared pro se, stated, "[I]f there's anything that I've done wrong as a lawyer, it is in the using of subterfuge in getting the money for the work that I had already done for these people." As a result of this and similar statements made at the hearing, formal charges were filed against respondent for violating DR 1-102(A)(4).³ This charge was joined to the others, and, after a second hearing on March 16, 1978, the Hearing Committee found that respondent had violated DRs 6-101(A)(3) and 7-101(a)(1) & (2) but dismissed the charge under DR 1-102(A)(4) on the belief that it was barred by due process under the Supreme Court's decision in In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968). Bar Counsel appealed this decision to the Board. The Hearing Committee recommended that respondent reimburse Ms. Scales and that he be censured publicly by the Court of Appeals.

The Gregory Case — Docket No. 123-77

In the autumn of 1975, Theodora Gregory received a summons to appear in Landlord and Tenant court on October 24, 1975. At that time Ms. Gregory approached respondent and retained him to represent her in the matter. Respondent told Ms. Gregory that she need not appear in court because he would appear for her and attempt to negotiate a settlement with the landlord. On October 24, 1975, respondent appeared and obtained a continuance until November 5, 1975.

At this point the testimony diverges. Ms. Gregory testified that respondent called her between October 24 and November 5 and told her only that she need not appear in court on November 5 because he would represent her. Respondent testified that on October 24 he reached an agreement with the landlord, and that he called Ms. Gregory to tell her that the landlord would make certain repairs after which she should pay the rent. Respondent also testified of a second telephone call in which he told Ms. Gregory that the landlord's repairman had gone to her apartment but that she had refused to admit him.

Respondent did not appear in court on November 5, and consequently a default judgment was entered against Ms. Gregory resulting eventually in her eviction. At no time did respondent withdraw his appearance on behalf of Ms. Gregory in the Landlord and Tenant action, inform her that he would not appear in court on November 5, advise her to retain other counsel, or take further action with regard to the pending suit. Ms. Gregory sued respondent for professional negligence, eventually recovering $6,000 damages, and she filed a complaint with the Board. After a preliminary investigation, respondent was charged formally with violating, inter alia, DRs 6-101(A)(3), 7-101(A)(1)-(3),⁴ and 1-102(A)(5).⁵ At the hearing on May 24, 1978, before a Hearing Committee, respondent stated that after Ms. Gregory failed to cooperate with his settlement, he felt no further obligation to her. The Hearing Committee found against respondent on these counts and recommended that he be suspended from the practice of law for six months.

The Board's Decision

The Board considered the Scales and Gregory cases together. Respondent presented no brief in opposition and, although he indicated that he would offer an oral argument before the Board, he did not appear at the hearing.

The Board found in each case that the record revealed respondent's "callous disregard for the interests of his clients, in violation of his legal and ethical obligations to those who were relying upon him."

In Gregory, the Board found that "abundant evidence supports the findings and recommendation" and noted that respondent acknowledged that he never withdraw his appearance as attorney of record. Even if it accepted as true respondent's version of the facts that the client failed to cooperate with the settlement agreement, the Board stated, "there is no justification whatever of Mr. Smith's unilateral — and uncommunicated — decision to abandon his representation." [Emphasis in the original.] The Board noted that if it was considering this charge alone, it would accept the Hearing Committee's recommended sanction of a six-month suspension.

In the Scales case, the Board expressed some doubts as to whether the Hearing Committee's findings supported the charges of intentional abandonment brought under DR 7-101(A)(1) & (2), but it found ample evidence to support a holding that respondent's conduct constituted neglect in violation of DR 6-101(A)(3). In addition, pursuant to Bar Counsel's appeal, the Board reinstated the charge brought under DR 1-102(A)(4). The Board held that Ruffalo was distinguishable from the case before it. The Board held that "the evidence is clear and convincing that Mr. Smith violated DR 1-102(A)(4) by making false or fraudulent statements to his client."

In conclusion, the Board found respondent "guilty of intentionally abandoning his client's cause in one case, and neglecting his client's interest, while at the same time deliberately misleading that client, in another." The Board recommended that respondent be required to make restitution of the $280 fee paid by Ms. Scales and that he be suspended from the practice of law for eighteen months.⁶

Respondent contends that the Board erred when it reinstated the charge brought under DR 1-102(A)(4) in the Scales case. The sole grounds for bringing that charge, and the only evidence of respondent's guilt, were supplied by respondent's statements before the Hearing Committee that his letter seeking a retainer from Ms. Scales for work to be done was only a "subterfuge" to obtain payment for the work he had already performed. Respondent argues that, under In re Ruffalo, he cannot be charged with disciplinary violations of which he had no notice and to which he admitted during the course of hearings on other alleged violations.

Ruffalo, an Ohio lawyer who handled a number of Federal Employer's Liability Act (FELA) cases, was charged by the bar association with a number of violations of the disciplinary rules including his use of a part-time employee named Orlando to solicit FELA clients. Ruffalo and Orlando both testified that Orlando was employed only to investigate the cases and did not solicit clients on behalf of Ruffalo. During the course of the proceeding, however, it was revealed that Orlando was employed by one of the railroads against which Ruffalo had brought some of his cases.⁷ The bar association added this additional charge against Ruffalo in the midst of the hearing and stated that his employment of Orlando to investigate against his employer was "deceptive in nature and was morally and legally wrong." Ruffalo was given a continuance to respond to the new charge. In disbarring Ruffalo, the Ohio Supreme Court concluded that...