In re Paris A. ARTIS, Respondent.
No. 03-BG-211.
District of Columbia Court of Appeals.
Decided Sept. 8, 2005.
883 A.2d 85
A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 181396). Argued Sept. 2, 2004.
Elizabeth J. Branda, Executive Attorney, for the Board on Professional Responsibility.
Traci M. Tait, Assistant Bar Counsel, with whom Joyce E. Peters, Bar Counsel
Before: SCHWELB, WAGNER,* and REID, Associate Judges.
WAGNER, Associate Judge:
The Board on Professional Responsibility (the Board) has recommended that respondent, Paris A. Artis, be suspended from the practice of law in the District of Columbia for thirty days with his reinstatement conditioned upon his compliance with Bar Counsel‘s subpoena duces tecum and an order of this court enforcing it. The proposed discipline is based on the report and recommendation of a Hearing Committee that respondent had violated
I.
A. Factual and Procedural Background
On April 10, 2000, Bar Counsel filed a Petition Instituting Formal Disciplinary Proceedings and a Specification of Charges against respondent, who was admitted to the District of Columbia Bar on December 17, 1973. The charges alleged violations of
On April 15, 1998, Bar Counsel notified respondent that the matter had been docketed for formal inquiry, provided him with a copy of the Auditor-Master‘s report and requested a substantive response to the allegations of misconduct in the report. After not receiving the response by April 29, 1998, Bar Counsel wrote respondent again informing him of his responsibility to comply with the request within five days and that failure to comply might result in a formal charge of failure to cooperate with Bar Counsel. By letter dated April 29, 1998, respondent replied to Bar Counsel‘s letter, stating that the Auditor-Master‘s report contained no allegation of misconduct and only a confused question about whether the deed in question represented a fraudulent conveyance. He explained that he did not understand the other “significant questions” raised by the Auditor-Master, since he had informed her that he had notarized the deed for Harold and Roland Butler, both of whom had appeared before him. He also stated that he informed the Auditor-Master that he had no recollection concerning Ms. Gary‘s signature, but he believed the documents were taken to her by Mr. Roland Butler for signature and that was probably why the deed had not been recorded. Respondent stated further that he was
On May 19, 1998, Bar Counsel wrote respondent, stating that “the allegations contained in the Report of the Auditor-Master speak for themselves,” and that the office was investigating respondent‘s representation of Roland Butler with respect to his father‘s estate. Bar Counsel included six written interrogatories, with sub-parts. Bar Counsel also enclosed a subpoena duces tecum seeking all documents related to the mortgage loan and trust against the estate and all retainer agreements, records of compensation, billing records, and copies of checks received as compensation from Harold O. Butler, Roland Butler and/or British Gary. Bar Counsel set a deadline of June 4, 1998, for respondent to answer the interrogatories and request for production of documents. Respondent failed to reply, and on June 10, 1998, Bar Counsel wrote respondent a letter warning him again that failure to respond could result in a formal charge of failure to cooperate.
On June 25, 1998, Bar Counsel filed a motion with the Board on Professional Responsibility, seeking to compel responses. Respondent did not reply to the motion, and the Board, acting through its vice-chair, issued an order requiring respondent, within ten days, to provide substantive answers to each allegation set forth in Bar Counsel‘s complaint, including the Auditor-Master‘s report, and to the six sets of questions posed to respondent by Bar Counsel‘s letter of May 19, 1998. The order further stated that a failure to comply would lead Bar Counsel to “consider whether [his] conduct constitutes, inter alia, conduct that seriously interferes with the administration of justice in violation of Rule 8.4(d).” Respondent still did not reply, and Bar Counsel initiated enforcement proceedings in this court related to respondent‘s failure to comply with the subpoena duces tecum. Although personally served with Bar Counsel‘s motion, respondent filed no response. This court issued an order requiring respondent to comply with the subpoena within ten days of its order.
Respondent testified before the Hearing Committee that he provided to a former Assistant Bar Counsel some documents, including some of the requested materials. However, that assistant testified that the documents respondent provided were related to another proceeding. Respondent also took the position that the allegations made in the Auditor-Master‘s report, when considered with Bar Counsel‘s inquiries, raised self-incrimination issues.
B. Reports and Recommendations of the Hearing Committee and the Board
The Hearing Committee found that respondent had violated the two rules as alleged based on all of the conduct charged by Bar Counsel and recommended a thirty-day suspension with reinstatement conditioned on respondent‘s compliance with Bar Counsel‘s request for information and production of documents and proof of fitness. Neither Bar Counsel nor respondent filed exceptions to the Hearing Committee‘s report and recommendation. The Board affirmed the Hearing Committee‘s findings and conclusions that respondent violated
II.
The Board urges this court to adopt its recommended sanction, particularly given the strong presumption favoring the Board‘s recommended sanction where, as here, the recommendation is consistent with the sanction imposed for comparable misconduct and is warranted otherwise by the circumstances. Bar Counsel agrees with the Board‘s conclusions regarding respondent‘s ethical violations. However, Bar Counsel contends that neither the facts nor the law supports the Board‘s exclusion of a requirement that respondent reply to Bar Counsel‘s written request for information. Bar Counsel further contends that a fitness requirement should be imposed under the circumstances presented.
A. General Applicable Legal Principles
Respondent is charged with violating two ethical rules:
[
Rule XI, § 9(g)(1) ] endorses the Board‘s exercise of broad discretion in handing out discipline that is subject only to a general review for abuse in that discretion‘s exercise. The rule requires that we enforce a general sense of equality in the sanctions handed out, but it otherwise commands that we should respect the Board‘s sense of equity in these matters unless that exercise of judgment proves to be unreasonable.
Id. (quoting In re Haupt, 422 A.2d 768, 771 (D.C. 1980)). The Board‘s recommendation and Bar Counsel‘s challenges must be considered applying these principles.
B. Recommendations for Sanction
The principal area of disagreement between the Board and Bar Counsel concerns the Board‘s recommended sanction. The Board unanimously recommended a thirty-day suspension, with reinstatement conditioned on compliance with the subpoena duces tecum and the Court‘s order enforcing it, without a showing of fitness.5 The Board contends that its recommendation is consistent with the sanctions imposed for similar misconduct and satisfies the purposes of discipline of protecting the courts, the profession and the public. In rejecting a fitness showing as a condition of reinstatement, the Board sought to distinguish between attorneys who have ignored entirely the disciplinary process and those who have made some effort to participate. In concluding that respondent‘s conduct did not reach the level of egregiousness that warrants a showing of fitness for reinstatement, the Board considered, in part, that respondent had submitted a general denial in response to Bar Counsel‘s initial inquiry, a conclusion that Bar Counsel challenges. Since resolution of the issue may bear upon the appropriate sanction, we consider it preliminarily.
While acknowledging that the adequacy of respondent‘s letter in response to Bar Counsel‘s initial inquiry formed no basis for the conclusion that he violated
“An attorney under investigation has an obligation to respond to Bar Counsel‘s written inquiries in the conduct of an investigation, subject to constitutional limitations.”
Bar Counsel asserts, extracting from the Hearing Committee‘s report, that respondent‘s letter was not a denial, but “simply a statement that there [would] be no substantive response to Bar Counsel‘s requests.” However, as the Board recognized, respondent‘s letter clearly went much further than that. As the Board outlined in its report, respondent stated in his letter that the Auditor-Master‘s report contained no allegation of misconduct and that the Auditor-Master‘s accusations were reckless. He also explained that he did not understand the Auditor-Master‘s report, since he had informed her that he had notarized the deed for the decedent, Mr. Harold O. Butler, and his son, Mr. Roland Butler, the removed personal representative, both of whom appeared before him. Further, he answered that he had informed the Auditor-Master that he had no recollection as to Ms. Gary‘s signature, but he believed that Mr. Roland Butler had taken the deed to her for signature and that this was probably why the deed was not recorded. Respondent concluded his letter by requesting a detailed statement and specific accusations of misconduct if any further response was necessary.
Respondent‘s answer, in which he denied that the facts alleged constituted misconduct on his part, challenged the Auditor-Master‘s accusation as reckless, explained his role in the questioned transaction and requested a specification of charges, if any further response was necessary, is sufficient to place Bar Counsel on notice that respondent denied engaging in any misconduct and what he had done in connection with the transaction. This is particularly so in light of the fact that Bar Counsel did not identify the alleged misconduct to which she referred in the Auditor-Master‘s report or direct respondent to address any specific statements in the report. Under these circumstances, we agree with the Board that, insofar as Bar Counsel‘s initial inquiry is concerned, respondent‘s letter was adequate to comply with
2. Propriety of a Fitness Requirement for Reinstatement
Bar Counsel argues that a fitness requirement should be imposed as a condition of reinstatement because: (1) respondent‘s conduct did not fall short of the type of egregious conduct where a fitness requirement has been imposed in other cases; and (2) “[r]espondent‘s psychological/emotional/mental state also calls for a showing of fitness.” It is the Board‘s position that “[r]espondent‘s level of cooperation in this proceeding and acknowledgment of misconduct distinguishes this case from the egregious disregard of the disciplinary process emblematic of misconduct requiring a showing of fitness.” With respect to Bar Counsel‘s second ground for a fitness showing, the Board argues that this argument was not preserved and that, in any event, the evidence was insufficient to support a fitness requirement on the basis of any alleged psychological problem. We consider each of these arguments in turn.
(a) Applicable Legal Principles for Fitness Requirement
We have held that “in circumstances where the respondent has repeatedly
In Mattingly, 790 A.2d at 579, and In re Giles, 741 A.2d 1062 (D.C. 1999), cited by Bar Counsel, we imposed a thirty-day suspension with a fitness requirement for reinstatement for violations of
(b) Level of Egregiousness
In this case, the Board concluded that respondent‘s conduct was not so egregious as to warrant the imposition of a fitness requirement. Specifically, the Board was persuaded by respondent‘s level of cooperation in the proceedings, including his general denial of the charges, participation in the hearing and legitimate objections to Bar Counsel‘s “interrogatory-like questions.” Thus, respondent‘s conduct differed from cases where an egregious disregard of the system was found, thereby warranting a fitness requirement. See Giles, 741 A.2d at 1062 (fitness requirement imposed where attorney repeatedly and deliberately failed to respond to Bar Counsel‘s inquiries and disregarded the Board‘s order); Wright, 702 A.2d at 1257 (holding that “[r]espondent‘s failure to participate at any stage of the disciplinary process reflects an egregious disregard for his obligations within the disciplinary system ... [and] is an aggra-
The Board‘s recommended sanction, which excludes a fitness showing before reinstatement, is consistent with the discipline in cases where the conduct was less egregious than the cases in which the requirement was imposed. See In re Beller, 802 A.2d 340 (D.C. 2002) (thirty-day suspension imposed for counsel‘s failure to respond to repeated inquiries from Bar Counsel and the Board regarding three complaints with reinstatement conditioned on cooperation with Bar Counsel in the cases); In re Beaman, 775 A.2d 1063 (D.C. 2001) (thirty-day suspension for counsel‘s conceded failure to respond to inquiries from Bar Counsel and orders of the Board); In re Nielsen, 768 A.2d 41 (D.C. 2001) (public censure for violations of
We agree with the Board that respondent‘s conduct did not evidence the level of egregiousness warranting a fitness requirement, and consistent with our deferential standard, we see no reason not to defer to its unanimously recommended sanction. See Steele, 630 A.2d at 199 (This court will adopt the Board‘s recommended sanction “unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.‘“) (quoting
(c) Claimed Psychological Need for Fitness Requirement
Bar Counsel argues for the first time in this court that respondent should be required to show fitness before reinstatement because of his “psychological/emotional/mental state.” The Board argues that, having failed to present the point to the Board, Bar Counsel has waived the argument. Alternatively, the Board contends that the record does not support a finding that respondent has psychological or emotional problems warranting a showing of fitness for reinstatement. Rather, the Board states that the evidence is “more fairly characterized as [respondent‘s] acknowledgment of the misconduct and remorse, factors appropriately considered in mitigation, not aggravation, of sanction.”
In Holdmann, however, this court made clear that since the final decision lies with the court, it can relieve a party of the waiver, although it declined to do so in that case. Id. at 890. Similarly, there is nothing in this record to indicate that relief from the waiver is warranted. In any event, as the Board points out, the scant testimony upon which Bar Counsel relies for a fitness recommendation on this ground is “more fairly characterized as an acknowledgment of the misconduct and remorse, factors appropriately considered in mitigation, not aggravation, of sanction.”10 See Dunietz, 687 A.2d at 212 (holding concession of misconduct and remorse constitute mitigation evidence).
Bar Counsel cites Steele, 630 A.2d at 196, as support for the proposition that a possible psychological inability to comply with ethical obligations requires a showing of fitness for reinstatement even when the Board disagrees. Steele is distinguishable. In that case, we imposed a fitness requirement where the attorney neglected a legal matter, failed to cooperate with Bar Counsel and acknowledged “unidentified personal problems that adversely affected her emotional stability and caused her to abandon a client‘s case.” Id. at 201. The attorney stated in a letter to Bar Counsel that she had become “more emotionally stable,” but left unanswered the question “whether she is sufficiently stable to practice law.” Id. Thus, the attorney in Steele placed in question her continued fitness to resume practice, and this court found it necessary to impose a fitness requirement to assure that ” [her] resumption of the practice of law [would] not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest. ” Id. (quoting In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985)).
In contrast to the attorney in Steele, respondent is not before the court for neglect of a client matter, nor do the facts of record disclose a history of personal problems leading to emotional instability or raise questions as to respondent‘s present
3. The Board‘s Recommended Conditions for Reinstatement
The Board concluded that respondent‘s reinstatement should be conditioned on his compliance with Bar Counsel‘s subpoena duces tecum and the order of this court enforcing it, the authority for which is established under
“An attorney under investigation has an obligation to respond to Bar Counsel‘s written inquiries in the conduct of an investigation, subject to constitutional limitations.”
Generally, “[t]he right to discovery stems from statutes or court rules providing for discovery.” In re Herndon, 596 A.2d 592, 594 (D.C. 1991). However, the only Bar rule providing explicitly for discovery addresses the right of the respondent to reasonable discovery. See
This court has held that “‘procedural requirements analogous to those of other ‘contested cases’ must be observed in attorney disciplinary cases.‘” Herndon, supra, 596 A.2d at 594 (quoting In re Thorup, 432 A.2d 1221, 1225 (D.C. 1981)). However, we have recognized that parties are not generally entitled to discovery as a matter of constitutional right in such proceedings. See id. at 595 (citing Silverman v. Commodity Futures Trading Comm‘n, 549 F.2d 28, 33 (7th Cir. 1977)). Neither the District of Columbia Administrative Procedure Act (DCAPA),
In this jurisdiction, the rules of discovery are much more restricted for the prosecutor in a criminal proceeding.16 See Herndon, supra, 596 A.2d at 596 (citing
That is not to say that attorneys under investigation have no obligation to respond to Bar Counsel‘s inquiries, a concern raised by Bar Counsel. On the contrary, as previously stated,
The Board determined that the information requested in Bar Counsel‘s question 2 and parts of questions 4 and 5 could be readily obtained from the documents covered in Bar Counsel‘s subpoena duces tecum, enforced by the court‘s order.21 Bar Counsel contends that whether these inquiries will be answered by the documents respondent is required to produce is speculative. It was not unreasonable for the Board to conclude that the nature and dates of respondent‘s representation of British Gary and/or Roland O. Butler (including the time periods and basis) and names of the parties to the mortgage and second trust transaction and dates, as requested by Bar Counsel, would be revealed in the related documents, which are the subject of the subpoena.22 See
Finally, the Board found that “[t]o the extent that the questions asked by Bar Counsel would require respondent to explain actions that the Auditor-Master had described as ‘a fraudulent conveyance,’ [r]espondent had a right to interpose an objection based on constitutional limitations and decline to provide a response.” The privilege against self-incrimination can be asserted in any proceeding, including
Conclusion
In summary, because of the disagreement between the Board, the Hearing Committee and Bar Counsel on the sanction, specifically as it relates to the terms of reinstatement, we have examined carefully their positions in light of the record in this case and in prior cases. Ultimately, we agree with the Board‘s analysis and adopt its recommended sanction for the reasons expressed in this opinion. The recommendation is consistent with the sanctions imposed for similar misconduct and satisfies the purposes of discipline of protecting the courts, the profession and the public.
Therefore, Paris A. Artis is hereby suspended from the practice of law for thirty days, effective fifteen days after the date of this order with the requirement that he comply with Bar Counsel‘s subpoena duces tecum as a condition of reinstatement. Respondent‘s attention is directed to the requirement of
So ordered.
SCHWELB, Associate Judge, concurring:
I agree that we must accord considerable deference to the carefully considered recommendation of the Board on Professional Responsibility, and I therefore agree with the sanction imposed by the court. I also agree with much of the opinion of the court, and especially with its measured approach to the issue of discovery in disciplinary cases. I write separately, however, because I have some concerns regarding the court‘s treatment of the question whether Mr. Artis and Bar Counsel have adequately preserved certain contentions.
The Hearing Committee recommended that Mr. Artis be suspended from practice for thirty days, and that he be required, inter alia, to demonstrate his fitness to practice as a condition of reinstatement. Mr. Artis filed no exceptions to this recommendation, and even when the Board came to his rescue, he failed to file a brief in this court. In other words, Mr. Artis did not simply neglect to preserve an issue; his inaction was analogous to failure to file an appeal. Under the circumstances, giving Mr. Artis every possible benefit of any conceivable doubt, I should think that he is entitled, at best, to review under “the dis-
My disquiet in this regard is reinforced by the court‘s treatment of Bar Counsel with respect to an argument made for the first time in this court. Before the Board, Bar Counsel claimed that Mr. Artis should be required to prove fitness as a condition of reinstatement, but she did not argue that this requirement should be imposed in part on the basis of his “psychological/emotional/mental status.” Bar Counsel did make this additional argument before this court. In other words, Bar Counsel raised a new argument in support of a previously presented, and thus preserved, claim. But “once a ... claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments made below.” West v. United States, 710 A.2d 866, 868 n. 3 (D.C. 1998) (quoting Yee v. Escondido, 503 U.S. 519, 534 (1992)). Under these circumstances, I believe that Bar Counsel preserved her right to base her argument, in part, on Mr. Artis’ mental and emotional state. By any measure, Bar Counsel preserved her claim far more diligently than Mr. Artis preserved (or, more precisely, failed to preserve) his.
Having said all of the foregoing, I am still prepared to defer to the Board‘s carefully considered recommendation and to express agreement with much of the court‘s opinion. Nevertheless, at least for me, it is quite a close call.
Notes
Mr. Artis reported ... that to his recollection, Ms. Gary was not present in the room at the time Harold O. Butler executed the Deed. Ms. Gary reported ... that she didn‘t think the real estate was hers, and that she was not in Mr. Artis’ office until after her father had passed.... Mr. Artis reported ... that he could not locate the original Deed and [tax] exemption forms. In addition, [Mr. Artis] advised that he held a mortgage in the amount of $7,500.00 against the decedent‘s real estate. Foreclosure counsel advised the Auditor-Master that a second trust to Mortgage Savers, Inc., [Mr. Artis‘] company, dated September 1, 1989, (after the conclusion of the trial in Davis v. Butler) was not recorded against the decedent‘s property until March 20, 1991, i.e., after Mr. Butler‘s death.
A party shall state in short and plain terms the party‘s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.... Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments ..., the pleader may do so by general denial....
(1) Did you request [sic] at any time represent British Gary and/or Harold O. Butler? If so, explain in detail including time periods, the matters and basis of representation[.]
(2) What were the circumstances of the conveyance of property by Harold O. Butler to Roland T. Butler and British Gary? Did you prepare the deed that you notarized? Was compensation paid to Harold Butler by Roland Butler and/or British Gary? Who was your client in connection with this transaction? Were you compensated? By whom? Please explain in detail including time periods of representation.
(3) Was Ms. Gary in the room to witness the execution of the deed? If not, then why did you prepare the deed to state such?
(4) What were the circumstances of the $7500 mortgage mentioned in the Report of the Auditor-Master on page 6, footnote 2? Who were the parties to this transaction, when did it take place, and who authorized the transaction? Please explain in detail.
(5) What were the circumstances of the “second trust to Mortgage Savers, Inc.; dated September 1, 1989?” Who were the parties to this transaction, when did it take place and who authorized the transaction? Why was there a delay in recording the second trust? Please explain in detail.
(6) Please explain your conduct in connection with the $7500 mortgage and the second trust in light of the D.C. Rules of Professional Conduct in particular Rules 1.7(b)(4) and 1.8(a).
The attorney shall have the right to reasonable discovery in accordance with rules promulgated by the Board. Rulings with respect to such discovery proceedings shall be made by the Chairperson of the Hearing Committee to which the matter has been assigned for hearing or by the Chairperson of the Board. Objections to such rulings shall be preserved and may be raised upon appeal to the Board from the final action of the Hearing Committee. No interlocutory appeals shall be permitted.