In re Gregory L. Lattimer
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
(Argued November 4, 2019 Decided January 16, 2020)
Gregory L. Lattimer, pro se.
Hamilton P. Fox, III, Disciplinary Counsel, with whom Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, was on the brief, for the Office of Disciplinary Counsel.
Sitting by designation pursuant to
I. Standard of Review
In a disciplinary case, Disciplinary Counsel must establish a rule violation by clear and convincing evidence. In re Tun, 195 A.3d 65, 72 (D.C. 2018). This court accepts the factual findings of the Board “if they are supported by substantial evidence in the record.”2 In re Howes, 52 A.3d 1, 12 (D.C. 2012); see also
II. Misconduct
A. District of Columbia Rule 1.4(a)
To comply with
1. Roderick Strange
The Hearing Committee, and the Board in turn, made the following findings with respect to Mr. Lattimer‘s representation of Roderick Strange: Mr. Strange‘s mother retained Mr. Lattimer to represent her son in his criminal appeal in March 2008. Mr. Lattimer met with Mr. Strange just once in person, at the D.C. Jail, in March. Thereafter, Mr. Strange was transferred to a federal prison in South Carolina. While he was in transit and after he arrived at his destination, Mr. Strange made a number of collect calls to Mr. Lattimer‘s office. None of his calls was accepted; meanwhile, Mr. Lattimer did not call, write, or visit Mr. Strange. After six months of no contact, Mr. Strange paid for a long distance call to Mr. Lattimer‘s office in October 2008. A month later, Mr. Lattimer sent Mr. Strange a letter informing him that he had an “outstanding balance” that would need to be paid if Mr. Strange still wanted him to file a brief. That was their final communication. Mr. Lattimer never entered an appearance in the case and never filed any documents with the Court of Appeals, see
Regarding the actual extent of his contact with Mr. Strange, Mr. Lattimer vaguely asserts that “[t]he facts about communication are at odds,” and refers us to his exceptions to the Hearing Committee Report, which he “incorporate[s] as if fully set forth” in his brief. In an appeal to this court, it is Mr. Lattimer‘s obligation to set forth his argument in his brief, and it is
Mr. Lattimer argues in the alternative that he had no legal obligation under
2. Toby Cooper
The Hearing Committee, and the Board in turn, made the following findings regarding Mr. Lattimer‘s representation of Toby Cooper: Ms. Cooper retained Mr. Lattimer on June 18, 2010, to represent her in a federal civil rights lawsuit. Over the next three months (until she terminated his representation), Ms. Cooper had only limited contact with Mr. Lattimer, even though he had led her to believe her case needed to move quickly and even though she reached out to him in different ways, repeatedly. During the month of July, Ms. Cooper sent Mr. Lattimer two packages of case-related documents in the mail,7 and then, to get updates on her case, emailed him four times and called him seven times. Mr. Lattimer never called her back. He sent Ms. Cooper one email in early July informing her he had not yet filed a complaint. Later that month he sent Ms. Cooper two more emails—apparently prompted by a concern that Ms. Cooper was criticizing him to colleagues for being non-communicative—in which he defended his approach to client contact. Ms. Cooper again attempted to connect with Mr. Lattimer in August via email and in September via phone, but without success. On September 22, 2010, Ms. Cooper emailed Mr. Lattimer to discharge him as her attorney and to request a refund of her retainer.
Mr. Lattimer disputes Ms. Cooper‘s narrative of her many unsuccessful efforts to connect with him, again effectively asking us to reassess the Hearing Committee‘s credibility determinations.8 Even if we could, but see supra page 6, we would decline to do so. The Hearing Committee heard firsthand from Ms. Cooper, whose testimony was corroborated by phone logs and printouts of the emails, which were entered into the record and never challenged by Mr. Lattimer. In short, there was ample, unimpeached evidence to support the Hearing Committee‘s determination that Mr. Lattimer failed to adequately communicate with Ms. Cooper.
Mr. Lattimer also argues that he had no obligation under the Rules to contact Ms. Cooper when “he had no update on her case for her,” and that the Rules required him to communicate with Ms. Cooper only when it was “necessary, required, and warranted.” We cannot agree. Ignoring or electing not to respond to Ms. Cooper when she reached out to learn the status of her case was not an option. Rather, to keep Ms. Cooper “reasonably informed” per
We conclude that Mr. Lattimer‘s minimal email contact and failure to return any of Ms. Cooper‘s calls for three months after he was retained violated District of
B. Virginia Rules 1.1 and 1.3(a)10
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.
Whether an attorney has “fail[ed] to provide competent representation is a matter decided on a case by case basis.” Weatherbee v. Va. State Bar, 689 S.E.2d 753, 757 (Va. 2010) (internal quotation marks omitted). Relatedly,
1. Failure to Investigate
The Hearing Committee, and the Board in turn, made the following findings regarding Mr. Lattimer‘s representation of Ms. Wilkins: Ms. Wilkins‘s son, Mr. Davis, had been committed to Virginia‘s Central State Hospital in January 2010. While there, he was killed by another patient who was known by staff to be violent and to have threatened Mr. Davis. Mr. Davis and the other patient were housed on the same ward, in unlocked rooms. An official report of the incident prepared by the hospital determined that the failure of staff to monitor the ward “provided the opportunity” for the attack on Mr. Davis.
In September 2011, Ms. Wilkins hired Mr. Lattimer to file a lawsuit on her behalf and subsequently signed a retainer agreement.11 Before Mr. Lattimer began work on the case, Ms. Wilkins provided him with a copy of the hospital report with all of the names of the hospital employees redacted. Five months later, in late February 2012 (just before the statute of limitations ran), Mr. Lattimer filed a complaint raising, inter alia, claims of grossly negligent supervision and deliberate indifference, in which he named as one of the defendants the director of the hospital, Vicki Montgomery. Mr. Lattimer sued Ms. Montgomery because he erroneously believed that she was running the hospital at the time of Mr. Davis‘s death, and he sought to hold her liable in that capacity; in fact, at the time of Mr. Davis‘s death, the director was Dr. Charles Davis. Although Mr. Lattimer subsequently filed an amended complaint, he again misidentified Ms. Montgomery as the hospital director and again asserted her liability as such.12 The federal district court ultimately granted Ms. Montgomery‘s motion for summary judgment,13 finding that she did not have any relevant supervisory responsibilities at the hospital at the time of Mr. Davis‘s death. The court also denied Mr. Lattimer‘s beyond-the-eleventh-hour motion for leave to file a second amended complaint to add Dr. Davis as a defendant because he could not satisfy the
requirements of
Both the Board and the Hearing Committee broadly critiqued Mr. Lattimer‘s investigation of Ms. Wilkins‘s case, and on this basis concluded he had violated
In his initial brief to this court, Mr. Lattimer does not directly address the inadequacy of his investigation into the identity of the director of the hospital at the time of Mr. Davis‘s death, the fact that he erroneously sued Ms. Montgomery, or his belated, unsuccessful attempt to sue the actual director.15 But in the context of challenging a suggestion that he could have discovered the director‘s identity through pre-filing discovery, he asserts that no discovery was needed because “all one had to do was read the newspaper.” He elaborates in a footnote that “[a]nyone interested in [Mr. Davis‘s] murder would surely try and educate himself/herself as much as possible. Reading media accounts about the incident is the least that one would do.”
What is notable about this passage is that Mr. Lattimer nowhere asserts that this is what the record reflects he did in the four months between taking Ms. Wilkins‘s case and filing her complaint. And for good reason. Mr. Lattimer‘s file contained no evidence that he read contemporary news reports or tried to “educate
himself[] as much as possible.” His file contained no evidence of pre-filing investigation at all, other than one press release announcing Ms. Montgomery‘s promotion to hospital director, dated October 22, 2010, six months after Mr. Wilkins‘s death—which itself should have put Mr. Lattimer on notice that more investigation into the identity of the director was required.16 Mr. Lattimer testified before the hearing committee that, before he filed Ms. Wilkins‘s complaint in February 2012, he “got on the internet” to “start reading everything that I can about the hospital . . . [about] how it is set up in terms of what they do.” He further testified he looked at “personnel” and “I see who does what. Who is in charge of this; who is in charge of that.” But not only is there no record of this internet research in his files, his testimony indicates that he was describing what could be seen on the hospital‘s (presumably current in 2012) website, not newspaper articles from the time of Mr. Davis‘s death in 2010. And then there is the fact that a newspaper article from
who the hospital director was.17 Thus Mr. Lattimer‘s identification of Ms. Montgomery as the hospital “director” in the initial complaint he drafted is itself some proof that he did not review contemporary news articles—i.e., he did not conduct the very type of investigation that he acknowledged to the Hearing Committee would be expected under the circumstances.
Moreover, whatever the extent of his investigation before he filed his initial complaint, he was certainly obligated to do additional investigation once Ms. Montgomery put him on notice in her March 2012 motion to dismiss that she was not the director of the hospital at the time of Mr. Davis‘s murder. Yet, Mr. Lattimer filed an amended complaint in which he continued to identify Ms. Montgomery as the hospital director, again basing her liability on this purported role. Ms. Montgomery reiterated her denial that she was the hospital director in subsequent court filings, first in another motion to dismiss filed in April 2012, and then in a motion for summary judgment with an accompanying declaration filed in May 2012.18 Even then, Mr. Lattimer continued to assert that Ms. Montgomery
was the hospital director, or at least the acting hospital director, at the time of Mr. Davis‘s death.19 He did not seek to amend his complaint to sue the correct person under his theory of the case—Dr. Davis, the actual director of the hospital at the time of Mr. Davis‘s death—until December 2012.20
Mr. Lattimer similarly glossed over his delay in identifying the actual director of the hospital at the time of Mr. Davis‘s death in his oral argument to the Fourth Circuit. He represented that “[o]nce we discovered that [Ms.] Montgomery was the assistant director, as opposed to the director at the time, we[] sought to sue the director.” While superficially correct, this statement obscures the fact that Ms. Montgomery told Mr. Lattimer in March 2012 that she was not the hospital (continued…)
This delay
(...continued) director at the time of Mr. Davis‘s death, but Mr. Lattimer did not acknowledge that Dr. Davis was in fact the hospital director he meant to sue until he moved to amend his complaint in December 2012.
Davis “still has an office and practices medicine at [Central State Hospital]” (Dr. Davis‘s unimpeached testimony at his deposition was that he was retired)).
This outcome was avoidable. Had Mr. Lattimer timely identified Dr. Davis as the hospital director and diligently sought leave to amend his initial complaint to add him as a defendant, he could have ensured Dr. Davis had actual notice of Ms. Wilkins‘s suit within the requisite 120-day timeframe. As detailed above, Ms. Montgomery told Mr. Lattimer just a month after he filed Ms. Wilkins‘s complaint that she was not the director of the hospital at the time of Mr. Davis‘s death and was not the person he wanted to sue. Instead of taking corrective action, however, Mr. Lattimer chose to dispute a fact that he himself concedes could have been verified by a review of contemporaneous news articles. By the time he tried to correct course and to amend his complaint to sue Dr. Davis, it was too late.
In sum, Mr. Lattimer aimed to sue the director of the hospital at the time of Mr. Davis‘s death, but he identified the wrong individual as serving in that role and then failed to timely correct his mistake. To comply with Virginia Rules 1.1 and 1.3, Mr. Lattimer was not necessarily required to identify the correct party before filing the lawsuit, see Weatherbee, 689 S.E.2d at 755-57 (concluding the attorney‘s lawsuit was frivolous in violation of Virginia Rule 3.1, rather than incompetent in violation of Virginia Rule 1.1, when he sued the wrong doctor in a medical malpractice case), nor was he required to conduct an investigation to determine who the actual director was in any particular way. However, the Virginia Rules did require Mr. Lattimer to make reasonable efforts to investigate who in fact the appropriate parties were under his own theory of the case and to diligently seek to add those parties. Cf. In re Speights, 173 A.3d at 99. This he failed to do.
2. Failure to Engage an Expert in a Timely Manner
The Board and the Hearing Committee also found that Mr. Lattimer failed to engage an expert in a timely manner.
Mr. Lattimer challenges the Board‘s determination that he failed to engage an expert in a timely manner as having “no basis in fact, law[,] or logic.” He argues that he “engaged two (2) experts in a timely manner,” and that “the problem” was “the facts of the case” and his consequent difficulty in “getting an expert to say what was needed and/or desired.” There are a number of flaws in this argument.
First, according to Mr. Lattimer‘s own testimony, he did not hire the first expert; that expert was hired by prior counsel. Second, for reasons he never explained, he only learned that this expert could not assist him the day after the initial filing deadline for expert disclosures. Third, he ultimately did find an expert to write a more detailed report that presumably said “what was needed and/or desired,” given his repeated argument to the federal courts that the exclusion of this late-filed report was “catastrophic” to his case. Fourth, the fact that this second expert (1) initially provided a facially inadequate one-page (really one-sentence, see supra note
Thus, we conclude that the Hearing Committee‘s and Board‘s finding that Mr. Lattimer failed to timely engage an expert is supported by substantial evidence. And we further conclude that this failure violated Virginia Rules 1.1 and 1.3(a). See Rice, 592 S.E.2d at 644 (failure to take timely action to permit client‘s motion for a sentence reduction to be heard constituted a violation of Virginia Rule 1.3(a)); cf. In re Speights, 173 A.3d at 99; In re Nwadike, 905 A.2d at 227.
C. Virginia Rule 8.4(c)
Virginia Rule 8.4(c) states “[i]t is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit[,] or misrepresentation which reflects adversely on the lawyer‘s fitness to practice law.” The Board and the Hearing Committee concluded that Mr. Lattimer violated this rule when he made certain “unqualified” representations to the Fourth Circuit about Dr. Davis in an effort show that his rejected second amended complaint could fulfill the relation-back requirements of
The Board and the Hearing Committee made the following relevant findings of fact: After Mr. Lattimer moved to file a second amended complaint in the Wilkins case naming Dr. Davis as a defendant, the district court allowed Mr. Lattimer to depose Dr. Davis to determine whether he would have had notice of the suit within the requisite timeframe under
Notwithstanding receiving Dr.
Mr. Lattimer challenges the Board‘s determination that he violated Virginia Rule 8.4 by engaging in conduct involving dishonesty based on these facts.28 Preliminarily, he argues that Dr. Davis‘s deposition testimony that he kept in touch with colleagues supported a reasonable inference that Dr. Davis “had a continuing relationship with the hospital.” But this argument is a red herring. The statement the Fourth Circuit described as “belied by the record” was Mr. Lattimer‘s specific representation that Dr. Davis “still has an office and practices medicine at the hospital.” See Wilkins, 751 F.3d at 225.
Regarding this statement, Mr. Lattimer argues that, because there was never any finding by the district court that Dr. Davis did not still have an office or see patients at the hospital, he was free to argue to the contrary to the Fourth Circuit in pursuit of his client‘s interests.29 Again, Mr. Lattimer‘s argument is misdirected.
The question is not whether Mr. Lattimer was entitled to dispute on appeal the veracity of Dr. Davis‘s deposition testimony that he no longer had an office at the hospital or saw patients there30; rather, the question is
The Hearing Committee and the Board concluded that Mr. Lattimer‘s statements to the Fourth Circuit were at least “recklessly false” and amounted to “conduct involving dishonesty” in violation of Rule 8.4(c). We conclude that Mr. Lattimer‘s statement is more properly characterized as a “misrepresentation” of record facts in violation of the rule. We look to the Fourth Circuit‘s application of the similarly phrased 8.4(c) of New York‘s Rules of Professional Conduct in In re Liotti, 667 F.3d 419 (4th Cir. 2011). Noting that “our adversary system depends on a most jealous safeguarding of truth and candor” and “[o]ne of the most important aspects of the work of an appellate lawyer is the obligation to provide the court with a fair and accurate presentation of the relevant facts,” id. at 429, the court in Liotti determined that the attorney had made multiple misrepresentations, including asserting that certain evidence established his client‘s innocence without revealing to the court that his client had subsequently admitted to a government agent that he had fabricated this evidence (the client then recanted this admission). Id. As discussed above, in this case, Mr. Lattimer‘s affirmative statements about Dr. Davis were similarly contradicted by record facts that he did not acknowledge to the Fourth Circuit.
III. Sanctions31
Having concluded that Mr. Lattimer committed multiple rule violations, we turn to the question of the appropriate sanction. D.C. Bar Rule XI, § 9(h)(1) provides that this court “shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.” We have interpreted this rule as giving “broad discretion” to the Board and correspondingly requiring this court to give “considerable deference” to the Board‘s recommendation. In re Chapman, 962 A.2d 922, 924 (D.C. 2009) (per curiam). But we have also recognized that “the responsibility for imposing sanctions rests with this court in the first instance.” Id.; accord In re Goffe, 641 A.2d 458, 464 (D.C. 1994) (per curiam) (“When the court disagrees with the Board as to the seriousness of the offense or the demands of consistency, . . . the Board‘s recommendations are accordingly granted less weight.” (internal quotation marks omitted)). Ultimately, “the buck stops here.” In re Chapman, 962 A.2d at 924 (internal quotation marks omitted).
In this case the Board proposed that Mr. Lattimer be suspended for sixty days for the “totality of [his] proven wrongdoing” and ordered to pay restitution of $4,500 plus statutory interest to Mamie Strange, with proof of payment
To determine what sanction to impose, we consider “the nature of the violation, the mitigating and aggravating circumstances, the need to protect the public, the courts, and the legal profession, and the moral fitness of the attorney.” In re Cater, 887 A.2d 1, 17 (D.C. 2005) (internal quotation marks omitted). Relevant factors include “(1) the nature and seriousness of the misconduct; (2) prior discipline; (3) prejudice to the client; (4) the respondent‘s attitude; (5) circumstances in mitigation and aggravation; and (6) the mandate to achieve consistency.” In re Vohra, 68 A.3d 766, 771 (D.C. 2013).
Mr. Lattimer‘s argument against any term of suspension is premised on a minimization or outright denial of his misconduct that does not align with the account of his rule violations set forth above. This misconduct was sufficiently serious, distressing to his clients, and taxing to our judicial system as to warrant some term of suspension, notwithstanding Mr. Lattimer‘s limited disciplinary history over his decades of practice.34 Setting aside aggravating factors35—which, as discussed below, we view as compelling a fitness requirement—we are persuaded by the cases the Board cites that a sixty-day term is consistent with the discipline we have imposed in cases where a respondent violated the same or a similar aggregation of Rules. See, e.g., In re Fox, 35 A.3d 441, 441-42 (D.C. 2012) (per curiam); In re Bah, 999 A.2d 21, 21 (D.C. 2010) (per curiam) (nonprecedential); In re Cole, 967 A.2d 1264, 1268-69 (D.C. 2009); In re Chapman, 962 A.2d at 927; In re Uchendu, 812 A.2d 933, 941-42 (D.C. 2002); In re Rosen, 481 A.2d 451, 455 (D.C. 1984).
Our view of the appropriate sanction diverges from that of the Board, however, on the question of imposing a fitness requirement in addition to a term of suspension. The two sanctions serve different purposes, as we explained in In re Cater:
The fixed period of suspension is intended to serve as the commensurate response to the attorney‘s past ethical misconduct. In contrast, the open-ended fitness requirement is intended to be an appropriate response to serious concerns
about whether the attorney will act ethically and competently in the future, after a period of suspension has run. Primarily, our concern is that the attorney‘s resumption of the practice of law will not be detrimental to the integrity and standing of the Bar, or to the administration of justice, or subversive to the public interest.
887 A.2d at 22 (internal quotation marks omitted). “[T]o justify requiring a suspended attorney to prove fitness as a condition of reinstatement, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney‘s continuing fitness to practice law.” Id. at 6; see also id. at 24. To determine whether the requisite serious doubt has been substantiated, it may be “useful” to consider the criteria we evaluate to determine if an attorney should be reinstated to the bar under In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985).36 In re Cater, 887 A.2d at 21.
Three broad concerns lead us to conclude that imposition of a fitness requirement is necessary in this case: (1) Mr. Lattimer‘s adamant refusal to accept responsibility and his corresponding willingness to blame any deficiencies in his representation on his clients; (2) his decision to file a patently frivolous lawsuit against a former client; and (3) his repeated practice before multiple tribunals of presenting a revisionist narrative of his actions.
First, Mr. Lattimer‘s failure to acknowledge wrongdoing and accept responsibility pervades his arguments to this court. He asserts he committed no rule violations and that the determinations by the Board to the contrary are without foundation. Specifically, Mr. Lattimer argues “[t]here was no evidence to support a finding that [he] improperly exercised his judgment in prosecuting the claim of Denise Wilkins“; “[t]here was no evidence to support a determination that [he] engaged in dishonesty with respect to an argument made to a tribunal” in the Wilkins case; the Board and the Hearing Committee‘s determination that he failed to adequately investigate the Wilkins case “is not supported by any evidence of any kind“; the “contention” that he failed to engage an expert in the Wilkins case in a timely manner “has no basis in fact, law[,] or logic“; and that “[t]he Hearing Committee had no basis upon which to find that [he] failed to communicate” with either Ms. Cooper or Mr. Strange. (emphasis added).
Instead of accepting responsibility for his misconduct, Mr. Lattimer seeks to blame others, most frequently his clients.37
We are extremely concerned that Mr. Lattimer would insinuate that Ms. Wilkins was in some part responsible for her son‘s killing by another patient simply because she called the authorities when her son was in crisis, which eventually led to his hospitalization. With Mr. Davis in its custody, Central State Hospital was responsible for his care and protection; and, as Mr. Lattimer well knows, an official state report concluded that his death was the result of “substantiated” “staff neglect.” We are similarly dismayed by Mr. Lattimer‘s graphic description of Mr. Davis‘s behavior while in the throes of mental illness and his insinuation that Mr. Davis‘s violent behavior precipitated his death. As a society, we commit individuals to psychiatric facilities when mental illness has rendered them a danger to themselves or others; and, for the duration of their commitment, it is the responsibility of the facility to keep them and others safe. Mr. Lattimer‘s arguments about Ms. Wilkins and her son are denigrating as well as diversionary. We cannot say if Ms. Wilkins could have ultimately won her case. But we know why she lost: Mr. Lattimer failed to timely name as a defendant the individual who was the director of the hospital at the time of Mr. Davis‘s death as required by his own theory of the case, and he failed to timely file his expert report. In short, the faults apparent in Mr. Lattimer‘s representation are his alone, and his refusal to accept responsibility and his inappropriate blame-shifting are grounds to question his fitness.
Mr. Lattimer‘s treatment of his clients leads us to our second major concern: Mr. Lattimer‘s decision to sue one of his clients, Ms. Cooper, for alleged defamatory statements she made to the D.C. Bar Clients’ Security Fund (“CSF“). Ms. Cooper applied to the CSF in an attempt to recoup funds Mr. Lattimer had refused to return to her.39 Pursuant to Bar Rules, Ms. Cooper‘s statements to the CSF were absolutely privileged, and she was immune from any suit based on those statements. D.C. Bar R. XII, § 14 (“Claims submitted to the [CSF] shall be absolutely privileged, and no complaint or action predicated thereon may be instituted or maintained.“). Mr. Lattimer‘s lawsuit against Ms. Cooper was both frivolous and harassing. Cf. In re Spikes, 881 A.2d 1118, 1119 (D.C. 2005) (holding that a defamation suit predicated in part on a complaint made to bar counsel,
In an effort to defend his decision to sue Ms. Cooper, Mr. Lattimer argues that “[b]ut for the immunity umbrella, success was certain.” This argument hurts rather than helps Mr. Lattimer because it demonstrates his continued failure to understand the protection D.C. Bar R. XII, § 14 provides. There was no possibility of success because there was no legitimate suit to bring; statements made to the CSF are not actionable. Equally troubling is Mr. Lattimer‘s argument that “he had never heard of [CSF] before, did not realize that it was associated with the Bar, and when he did, he dismissed the lawsuit.” Mr. Lattimer‘s ignorance of the D.C. Bar Rules concerning the CSF is an aggravating, rather than mitigating, factor in our consideration of his competence as a member of our Bar because it defeats the very protection the rule is intended to provide. Cf. In re Millstein, 667 A.2d 1355, 1356 (D.C. 1995) (per curiam) (recognizing ignorance of the Rules of Professional Conduct to be an aggravating factor). Likewise his subsequent withdrawal40 of the suit does not absolve him of frivolously filing it.
The Hearing Committee and the Board considered this lawsuit to be an aggravating factor, and so do we. See In re Baber, 106 A.3d 1072, 1075, 1077 (D.C. 2015) (per curiam) (holding that an attorney‘s frivolous lawsuit against a former client was an aggravating factor). This lawsuit was “detrimental to the integrity and standing of the Bar, [] to the administration of justice, [and] subversive to the public interest.” In re Cater, 887 A.2d at 22. Mr. Lattimer‘s continued insistence that the suit had some merit and his attempted excuse that he did not know the Bar Rules make his lawsuit against Ms. Cooper a compelling reason to impose a fitness requirement.
In addition to his failure to accept responsibility, his efforts to shift blame for his shortcomings to his clients, and his decision to bring a patently frivolous lawsuit against client, we add one more consideration: Mr. Lattimer‘s persistent willingness to revise history and take whatever position best suits his needs at that particular time, as evidenced by his litigation of this disciplinary matter.
For example, as discussed above, Mr. Lattimer sought to sue Ms. Montgomery because he erroneously thought she was the director of the hospital at the time of Mr. Davis‘s death, see supra section II.B.1. But when faced with the accusation that he failed to adequately investigate his case to ensure he timely named the correct individual as a defendant, Mr. Lattimer told the Hearing Committee that he knew all along that Ms. Montgomery was the assistant director at the time of Mr. Davis‘s death and Dr. Davis was the actual director of the hospital.41 According to this new, nonsensical narrative, (1) he decided to sue only Ms. Montgomery, even as he knowingly misidentified her42; (2) he knowingly chose not to sue Dr. Davis because, for some unexplained reason, he had “to make a choice,” and he chose Ms.
Similarly, although Mr. Lattimer told the District Court and the Fourth Circuit that his expert was “immeasurabl[y]” important and that his exclusion was “catastrophic,” once faced with an accusation of misconduct, he told the Hearing Committee and this court that he did not need an expert. And the fact that he did ultimately file a more detailed report, just too late, is inconsistent with his assertion in these disciplinary proceedings that he was stymied in filing an expert report at all because of the challenging “facts” of the Wilkins case.44
Lastly, we have already discussed how Mr. Lattimer argued in the Fourth Circuit, without any acknowledgment of the directly contradictory record evidence that he elicited from Dr. Davis at his deposition, that Dr. Davis still had an office or practiced medicine at the hospital. See section II.C.
To recap and put the above observations in the framework of In re Cater, 887 A.2d at 22, and the factors set forth in In re Roundtree, 503 A.2d at 1217, Mr. Lattimer has failed to acknowledge any evidence of wrongdoing or recognize its seriousness. His blaming and shaming of his clients is “subversive to the public interest” and leads us to be skeptical of his willingness to remedy past wrongs as well as his present character. In re Cater, 887 A.2d at 22. His frivolous lawsuit and ignorance of the Rules were “detrimental to the integrity and standing of the Bar” and “to the administration of justice.” Id. Lastly, his willingness to engage in revisionist history in this court and rewrite facts to his advantage calls into question not only his present character but also his present competence to practice law. All this amounts to clear and convincing evidence that “casts a serious doubt” on Mr. Lattimer‘s continuing fitness to practice law and thus justifies the imposition of a fitness requirement. Id. at 6.
IV.
For the reasons stated above, we conclude that Mr. Lattimer violated District of Columbia Rule 1.4(a) and Virginia Rules 1.1, 1.3(a), and 8.4(c) and impose a sanction of a sixty-day suspension, restitution, and a fitness requirement.
So ordered.
Notes
[Ms. Cooper] did not leave a message, if she did call, and she did not email the Respondent in order to communicate with him as she did when she wanted to discharge him. Had Ms. Cooper called and the Respondent been in the office, her call would have been taken; had she called and left a message, her call would have been returned; had she sent an email or letter it would have been responded to.
(continued...)
(...continued)
Mr. Lattimer: Maybe you can clarify something for me. I did look at your biography, and it indicated that you were seeing patients in Virginia as of 2012. Is that inaccurate?
Dr. Davis: That‘s inaccurate.
[Counsel]: Object—hold on. Objection to the form of the question. It lacks foundation. I don‘t know what biography you are referring to. But Dr. Davis you may answer the question.
Dr. Davis: Yes. No. I have not had an office in Virginia—I left Central State in May of 2010. And that‘s it. No practice in Virginia since that time. I‘ve consulted, but not practiced.
Mr. Lattimer: Didn‘t you have any office at Central State?
Dr. Davis: Not after May of 2010.
Mr. Lattimer: So in 2012, you did not have an office there?
Dr. Davis: I did not. I did not return to Central State after May 28th, 2010.
Mr. Lattimer: Did you have an office in Virginia in 2012?
Dr. Davis: I worked out of my home. But I did not have anything to do with Central State.
* * *
Mr. Lattimer: Okay I‘m sorry. You did—you indicated that you left Central State—I remember you saying 2010. Can you tell me when that was again?
Dr. Davis: It was in May of 2010, I retired from state service.
Mr. Lattimer: Did you retire from medicine in Virginia at that time?
(continued...)
(...continued)
Dr. Davis: No, no. I retired from state service.
Mr. Lattimer: Did you perform any services on behalf of Central State as a private individual, as opposed to a state employee?
Dr. Davis: No, I did not.
* * *
Mr. Lattimer: So your entire or complete affiliation or association with Central State concluded in May of 2010?
Dr. Davis: That‘s correct.
When Mr. Lattimer again referenced reading Dr. Davis‘s “biography” and “other pieces of information relating to [Dr. Davis] . . . on the internet,” Dr. Davis confirmed that there was erroneous information online because “there are companies who gather information and put it on the internet, whether it‘s accurate or not.”
Question: And Ms. Montgomery was at the time the assistant director of the hospital, correct?
Answer: She was assistant director.
Question: You knew that when you filed the lawsuit?
Answer: Of course I did.
Question: [W]hy did you call her the director [in your complaint]?
Answer: She was the director at the time I filed the lawsuit.
Question: Did you say anywhere in the lawsuit that she wasn‘t the director at the time the events occurred?
Answer: No, I didn‘t. Why would I do that?