In Re Outlaw
On the basis of multiple violations of the Rules of Professional Conduct, the Board on Professional Responsibility recommends that respondent Phyllis J. Outlaw be suspended from the practice of law for sixty days. Respondent takes exception to the Board’s findings. She contends the evidence presented by Bar Counsel is not clear and convincing as to any of the violations, and further argues that the recommended sanction is inappropriate. Although the Hearing Committee recommended a sanction of thirty days’ suspension, Bar Counsel argues that respondent should be suspended for six months. We accept the Board’s findings and adopt the recommendation for sixty days’ suspension.
I.
Respondent, licensed to practice law in the District of Columbia and Maryland, pursued her work primarily as a sole practitioner. In September 1993, respondent was retained by Ms. Mae E. Scott to represent her in a civil matter stemming from injuries sustained in a fall which occurred on August 2, 1993 in Virginia. Respondent’s office was located in the District, and after she was retained, the client’s case information was entered in the firm’s computer system by a case manager. The pertinent two-year statute of limitations in Virginia for the client’s tort action was incorrectly entered in the system as a three-year statute of limitations. Between October 1993 through April 1994, respondent communicated intermittently with Brothers Development Company, the purported tortfeasor, and Vik Brothers Insurance Group (“Vik Brothers”), its liability insurer. On October 19, 1993, Vik Brothers requested information about Ms. Scott’s fall for purposes of evaluating her claim. On December 9,1993, Vik Brothers again requested the information from respondent’s law office. In April 1994, the firm provided information to Vik Brothers, and Vik Brothers continued to wait for a settlement demand from respondent. Respondent did not communicate further with Vik Brothers until April 1996. By that time, Ms. Scott’s claim was time-barred by virtue of the Virginia statute of limitations — as of August 2, 1995 — without the filing of a legal action.
In April 1996, a new case manager at respondent’s office forwarded medical bills to Vik Brothers. Vik Brothers promptly wrote back, informing respondent that the claim was time-barred. Respondent did not share this information with Ms. Scott, but instead informed her on June 12, 1996 that “[djespite our best effort, this matter has not yet settled and the insurance carri
Between February 1997 and May 1998, respondent made intermittent efforts to convince Vik Brothers (and its successor insurance company) to consider settlement of Ms. Scott’s claim; however, she was ultimately unsuccessful. In July 1998, respondent informed Ms. Scott that she was unable to settle the claim due to the insurance company’s “refusal to negotiate in good faith” and advised her that her file was being closed because the firm was “losing money” on Ms. Scott’s matter. Notwithstanding this circumstance, she did not advise the client that the statute of limitations had run. Ms. Scott later requested copies of correspondence respondent directed to the insurance companies on her behalf, as well as other documents from her case file. On August 7, 1998, respondent replied to Ms. Scott’s request, and for the first time, informed her that her cause of action had expired, but did not accept any responsibility for that circumstance.
II.
The Office of Bar Counsel filed multiple claims of violation of the Rules of Professional Conduct before the Hearing Committee. It asserted violations of Rules 1.1(a) (competent representation) and (b) (serve client with skill and care), 1.3(a) (zealous and diligent representation), 1.4(a) (keep client reasonably informed) and (b) (explain matters to clients), 5.6 (unauthorized practice of law), and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation). The Hearing Committee conducted hearings on February 17 and March 10, 2004 and heard extensive testimony and examined a number of documents. The Committee issued its Report and Recommendation on June 21, 2004, finding by clear and convincing evidence that respondent had violated Rules of Professional Conduct 1.1(a) and (b), 1.3(a), 1.4(a) and (b), and 8.4(c), but that Bar Counsel had not demonstrated a violation of Rule 5.5(a). The Committee found Ms. Scott “extremely credible,” and found that Bar Counsel’s expert witness was “very knowledgeable” about personal injury practice in the District and Virginia, noting that he had also closely reviewed the files and medical records relating to Ms. Scott’s case. It determined that respondent’s expert was also knowledgeable about personal injury litigation in the District, but noted that he had not reviewed the medical records or incident reports in this case. In commenting on the respondent’s credibility, the Committee set forth detailed reasons as to why it did not credit her testimony, specifically listing several contradictions between the standard practices at respondent’s firm and the documentary
The Committee took into account the respondent’s prior lack of discipline, the seriousness of the misconduct, prejudice to the client, the number of disciplinary rules violated, conduct involving dishonesty, and all mitigating circumstances, in reaching its recommendation that respondent be suspended from the practice of law for thirty (30) days.
On December 23, 2005, the Board issued its Report and Recommendation, in which it determined that there was substantial evidence in the record to establish that respondent violated Rules 1.1(a) and (b), 1.3(a), 1.4(a) and (b), and 8.4(c) and concluded that respondent should be sanctioned by a suspension from the practice of law for sixty (60) days.
III.
In considering the Report and Recommendation of the Board on Professional Responsibility, we reiterate that D.C. Bar Rule XI § 9(g) “requires this court to accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record.”
In re Mitchell,
A major instance of misconduct in this matter involves the error in miscalculating the statute of limitations and the neglect of Ms. Scott’s case that allowed its expiration before meaningful negotiations could occur. The key factual determinations surrounding this misconduct were that the statute was overlooked, and regardless of the reasons or the identity of the person who entered it into the computer, respondent had the ultimate responsibility for supervising her subordinates and ensuring that the case was correctly calendared.
See In re Cohen,
A second incident of misconduct is significant. “Honesty is basic to the practice of the law.... Clients must be able to rely unquestioningly on the truthfulness of their counsel.”
In re Reback,
We turn now to the question of sanctions. The Board has recommended a suspension of sixty (60) days, and we must “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.” D.C. Bar R. XI, § 9(g)(1). Respondent argues that the Board did not appropriately take into consideration her long and unblemished record of service as a member of the District of Columbia Bar. It is true that respondent has been a practicing attorney in the District for twenty-six years and has never before been the subject of disciplinary action. It is also clear that she is generally well-regarded as a competent and experienced attorney. Nonetheless, her conduct in this case evinces a serious lapse in judgment involving both neglect and dishonesty.
In reviewing sanctions for similar misconduct, we note that in
Joyner
and
Banks, supra,
the attorneys received thirty-day suspensions based on neglect in missing the statute of limitations, without any finding of dishonesty. In
In re Ontell,
In this instance, Bar Counsel urges that the sanction should be greater than the sixty days recommended by the Board because, in addition to the neglect of the client’s cause, respondent’s misleading conduct was protracted and occurred over an extended period of time. Given respondent’s position of trust, counsel suggests that her interaction with her client was repeatedly evasive, significantly lacking in candor, and intended to avoid professional responsibility. Accordingly, it urges a greater sanction. This argument carries some persuasion. Because we conclude that the Board’s recommended sanction of sixty (60) days is not inconsistent with comparable conduct under our case law, we are constrained to accept it. Accordingly, we adopt the Board’s recommendations and direct respondent’s attention to the requirements of D.C. Bar R. XI, § 14(g).
So ordered.
Notes
. For example, respondent’s standard form letter to clients contemplating litigation contained a provision discussing the statute of limitations; respondent testified that her June 1996 litigation letter to Ms. Scott was based on her standard form letter. However, the letter sent to Ms. Scott did not discuss the statute of limitations, and the Committee found it incredible that she would alter her form letter to omit any such reference if she had discussed the issue with Ms. Scott as she claimed. The Committee also noted that respondent’s claim that Ms. Scott received copies of all correspondence between herself and Vik Brothers was contradicted by the firm's log of photocopying and postage expenses.