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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-BG-340

I N RE W ENDELL R OBINSON , R ESPONDENT

. A Member of the Bar of the Distri ct of Columbia Court of Appeal s (Bar Registration No. 377091) On Report and Recommendation of the

Board on Professional Responsibility (BDN-293-12) (Argued February 27, 2019 Decided February 20, 2020 )

Abraham C. Blitzer for respondent.

Hamilton P. Fox, III , Disciplinary Counsel, with whom Jennifer P. Lyman , Senior Assistant Disciplinary Counsel, was on the brief, for th e Office of Disciplinary Counsel.

Before B LACKBURNE -R IGSBY , Chief Judge , and F ISHER and B ECKWITH , Associate Judges

. B LACKBURNE -R IGSBY , Chief Judge : Disciplinary Counsel charged respondent Wendell Robinson with v iolating Rule 1.15(d) of the D.C. Rules of Professional Conduct for failing to hold disputed funds in trus t during the pendency of a dispute with co- counsel. Though Disciplinary Cou nsel only charged respondent with violating Rule 1.15(d), the Hearing Committee, sua sponte ,2 considered whether respondent also violated Rules 1.15(a) and ( c) by intentionally misappropriating funds. The Hearing Committee found that respo ndent violated Rules 1.15(a), (c), and (d), a nd recommended that respondent be disbarred. The Board on Professional Responsibilit y (“Board”) agreed that resp ondent violated Rule 1.15(d), but concluded that the Hearing Committee erred in considering the misappropriation charge under Ru les 1.15(a) and (c). The Board rejected the proposed sanction of disbarment, and instead recommended that r espondent be suspended for one year. We accept the Board’s findings and rec ommended

sanction.

I.

In September 2009, respondent and three others, D.C. attorneys Leonard L. Long and W. Thomas Stovall, II, and Virginia attorney William T hompson, associated to represent Tonyette Bables in a medical malpractic e suit in Virginia. On February 2, 2010, Ms. Bables signed a retainer agreement nam ing all four as her attorneys. The agreement outlined a contingency-fee arrang ement between attorney and client, but did not specify how the attorneys were to divide their fee among themselves. Respondent conducted the litigation largely on his own and eventually negotiated a settleme nt. Before the case settled, t he lawyers disagreed3 on how to divide the attorneys’ fees. Respondent assumed that, after paying Mr. Thompson a certain amount for his role as local counsel, the re maining fees would

be distributed based on the work each attorney performed. That understanding was based, at least in part, on resp ondent’s conversation with an A ssistant Disciplinary Counsel, who referred him to D. C. Rule of Professional Conduct 1.5(e). 1 Respondent testified that Mr. Long admitted respondent did all the work in the case, which respondent understood to be a concession that respo ndent was entitled to all of the attorneys’ fees. Mr. Long and Mr. Stovall, howev er, testified that they orally agreed with respondent to pay Mr. Thompson an unspecifie d amount for his services, and then divide the remaining fee equally among the t hree attorneys. In a letter dated May 16, 2011, Mr. Long rejected respondent’s propo sal to split the

1 Under Rule 1.5(e) of the D.C . Rules of Professional Conduct: A division of a fee between lawyers who are not in the same fir m may be made only if: (1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation. (2) The client is advised, in writing, of the identity of the lawye rs who will participate in the representation, of the contemplated div ision of responsibility, and of the effect of the association of lawyers outside the firm on the fee to be charged; (3) The client gives informed c onsent to the arrangement; and (4) The total fee is reasonable.4 fees based on the division of labor and suggested submitting th e issue to

arbitration.

In June 2011, Ms. Bables’s cas e settled for $600,000, entitling the attorneys to collect $240,000 (i.e., forty percent of the settlement) in accordance with the retainer agreement. Respondent, however, initially told Ms. Bables that the attorneys would collect only $200,000 (i.e., one-third of the s ettlement). After cocounsel told respondent that th e lawyers were actually entitled to $240,000, respondent informed Ms. Bables, who became upset. Respondent t estified that he offered to pay Ms. Bables one-third of the $40,000 difference b etween the two amounts. The settlement proceeds were credited to respondent’s trust account on June 20, 2011, and ten days later, respondent paid Ms. Bables $ 360,000, and paid Mr. Thompson $15,000, leaving $22 5,000 to be disbursed among re spondent, Mr. Long, and Mr. Stovall. By August 11, 2011, despite the fact th at the three attorneys had not resolved the attorneys’ fees issue, responden t had paid himself $193,350 and paid Mr. Long a nd Mr. Stovall each $15,700.

Mr. Long and Mr. Stovall filed a complaint with Disciplinary Co unsel, and, on May 20, 2015, Disciplinary Counsel charged respondent with v iolating Rule5 1.15(d) for failing to keep the d isputed funds in his escrow ac count. 2 Respondent conceded, and the Hearing Committee found, that respondent viol ated Rule 1.15(d). The Hearing Committee credited testimony by Mr. Long and Mr. Stovall that the attorneys had agreed to split the attorneys’ fees in e qual parts. The Hearing Committee found that res pondent “[r]epeatedly testified falsely” during the hearing when he stated that Mr. Long agreed that respondent was entitled to all or most of the settlement fees. The Hearing Committee also fou nd that respondent committed misappropriation, which was not included in the Speci fication of Charges, in violation of Rules 1 .15(a) and (c). Concluding tha t respondent violated Rules 1.15(a), (c), and (d), th e Hearing Committee recommended that respondent

be disbarred.

2 Rule 1.15(d) states, in relevant part: When in the course of representation a lawyer is in possession of property in which interests are claimed by the lawyer and another person, or by two or more persons to each of whom the lawyer ma y have an obligation, the property shall be kept separa te by the lawyer until there is an accounting and severance of interes ts in property. If a dispute arises concerning the respective interests among persons claiming an interest in such property, the undisputed portion shall be dis tributed and the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.6 The Board agreed that respondent violated Rule 1.15(d), but con cluded that the Hearing Committee erred when it considered the misappropria tion charge. Based solely on the Rule 1.15(d) violation, the Board recommend ed that respondent be suspended for one year. Neither Disciplinary Cou nsel nor respondent disputes the Rule 1.15( d) violation or the Board’s r ejection of the misappropriation charge. Both Disciplinary Counsel and respond ent, however, have filed exceptions to the Board’s recommended sanction. Res pondent seeks a thirty-day suspension, whereas Disciplinary Counsel urges this court to impose

disbarment.

II.

“The scope of our review of the Board’s Report and Recommendati on is

limited.” In re Bailey , 883 A.2d 106, 115 (D.C. 2005) (quoting In re Berryman , 764 A.2d 760, 766 (D.C. 2000)). We will accept the Board’s fin dings of fact, “unless they are unsupported by s ubstantial evidence of record, ” but will review the Board’s legal conclusions de novo

. In re Lee , 95 A.3d 66, 72 (D.C. 2014) (quoting D.C. Bar R. XI, § 9(h)( 1)). With respect to the Board ’s recommended sanction, we defer to the Boa rd’s recommendation unless doing s o “would foster a tendency toward inconsistent dis positions for comparable conduc t or would7

otherwise be unwarranted.” In re Ekekwe-Kauffman , 210 A.3d 775, 785 (D.C. 2019) (quoting In re Tun , 195 A.3d 65, 74 (D.C. 2018)).

A. Rule 1.15(d) Violation

Respondent concedes that he violated Rule 1.15(d) by failing to keep the disputed fees in a trust account pending resolution of the disp ute between him and

co-counsel. Respondent’s concession is also supported by the record. The Hearing Committee credited Mr. Long’s and Mr. Stovall’s testimo ny that they, along with respondent, agreed to equally divide the attorneys’ fees. Their testimony is supported by respondent’s offer to return one-thir d of the difference between what Ms. Bables thought she was going to receive in the settlement and what she actually received, reflecting respondent’s understandi ng that each attorney was entitled to one-third of the fee. Given that shar ed understanding, respondent was required to place the disputed portion of the at torneys’ fees in a trust account pending resolution of the dispute. Because he di d not, respondent violated Rule 1.15(d).

We also adopt the Board’s conclusion that the Hearing Committee erred when it added, sua sponte , a misappropriation charge to the case. Disciplinary8 Counsel is empowered to “dismiss a complaint, institute formal charges, or informally admonish an attorney,” In re Kitchings , 779 A.2d 926, 932 (D.C. 2001) (citing D.C. Bar R. XI, § 8(b)), subject to prior approval by a Contact Member, an attorney member of the Hearing Committee who may “review and ap prove or suggest modifications of” Disciplinary Counsel’s recommendation s. D.C. Bar R. XI, § 4(e)(5). If the Contact Member disagrees with Disciplina ry Counsel’s recommendation, the case is submitted to the Chair of the Heari ng Committee to make the final decision. Board Prof. Resp. R. 2.13. But there is no authority for the Hearing Committee, acting alone, to add charges that were n ot sought by Disciplinary Counsel or approved by a Contact Member. See D.C. Bar R. XI, §§ 5(c) (outlining powers and duties of the Hearing Committee), 6(a) (outlining powers and duties of Disciplinary Counsel).

In concluding that it was acting within the scope of its author ity in “tak[ing] the admittedly extraordinary step of considering charges not le vied by Disciplinary Counsel,” the Hearing Committee relied on In re Harris-Lindsey , 19 A.3d 784 (D.C. 2011), a case in which we adopted the Board’s rejection o f a petition for negotiated discipline in favor o f a contested proceeding. But Harris-Lindsey does not stand for the proposition that the Hearing Committee is aut horized to unilaterally add charges not sough t by Disciplinary Counsel. I nstead, Harris-9

Lindsey simply highlights this court’s authority to approve (or, in Harris-Lindsey , reject) a petition for negotiated disposition “in accordance wi th [the court’s] procedures for the imposition of uncontested discipline.” D.C. Bar R. XI, § 12.1(d). While the Hearing Committee correctly recognizes th e seriousness with which this court views misappropriation, see, e.g ., In re Addams , 579 A.2d 190, 196 (D.C. 1990) (en banc) (holding disbarment as the presumptiv e discipline for all but negligent misappropriati on), it overstepped its authori ty in considering the misappropriation charge here.

B. Sanction

Having concluded that respondent v iolated Rule 1.15(d), we now determine the appropriate sanction. We apply a strong presumption in fav or of adopting the Board’s sanction recommendation as long as it “falls within the wide range of acceptable outcomes.” In re Martin , 67 A.3d 1032, 1053 (D.C. 2013) (quoting In re Elgin , 918 A.2d 362, 376 (D.C. 2007)). But “the responsibility for imposing

sanctions rests with this court in the first instance.” In re Chapman , 962 A.2d 922, 924 (D.C. 2009). We base our determination of sanctions on mul tiple factors, including “(1) the seriousness of the conduct, (2) prejudice to the client, (3) whether the conduct involved dishonesty, (4) violation of other disciplinary rules,10 (5) the attorney’s disciplinary history, (6) whether the attorn ey has acknowledged his or her wrongful conduct, and (7) mitigating circumstances.” In re Martin , 67 A.3d at 1053. To foster consistent dispositions, “we necessari ly compare the instant case with prior cases in terms of the misconduct at iss ue, the attorney’s disciplinary history, and any legitimate mitigating or aggravat ing circumstances.”

In re Edwards , 870 A.2d 90, 94 (D.C. 2005). T he Board recommended that respondent be suspended from the practice of law for one year. We adopt that

recommendation.

We agree with the Board that re spondent’s violation of Rule 1.1 5(d) was

serious. Mr. Long and Mr. Stovall communicated to respondent on multiple occasions that they disputed res pondent’s proposed division of attorneys’ fees. Yet despite his awareness of the d ispute, respondent made multiple payments to himself out of the disputed funds, all without telling Mr. Long or Mr. Stovall. With respect to the prejudice factor, the Board noted that resp ondent’s failure to pay co-counsel potentially subjected Ms. Bables to a payment de mand from Mr. Long or Mr. Stovall. However, no such demand was made and ther e is no evidence that Ms. Bables was otherwise prejudiced by respondent ’s misconduct. The Hearing Committee did not find that respondent’s misconduct involved dishonesty, but it did find that respondent testified falsely, which warrants a greater11

sanction. In re Ekekwe-Kauffman , 210 A.3d at 798; In re Martin , 67 A.3d at 1054 (“Engaging in dishonest conduc t to cover up other misconduct is absolutely intolerable and warrants a greater sanction.” (cleaned up)). A s discussed, because the Hearing Committee erred in c onsidering the misappropriation charge, the Rule 1.15(d) violation is the only charge considered here. As to re spondent’s disciplinary history, respondent’s previous disbarment for misa ppropriation favors a greater sanction here. See In re Robinson , 583 A.2d 691 (D.C. 1990). Respondent, however, has acknowledged his latest misconduct and concedes his Rule 1.15(d) violation here.

Respondent seeks a thirty-day suspension, claiming that his goo d-faith reliance on Rule 1.5 is a substantial mitigating factor, and th at his conduct did not involve dishonesty or misrepresen tation. Even if we were to fi nd that respondent relied on his reading of Rule 1.5 in good faith, we must still account for other serious aggravating factors, such as his prior disbarment for m isappropriation and his false testimony to the Hearing Committee. See In re Cleaver-Bascombe , 892 A.2d 396, 413 (D.C. 2006) (considering false testimony a signif icant aggravating factor). Further, we decline re spondent’s invitation to distur b the findings of the Hearing Committee and Board that respondent testified falsely, Mr. Long agreed that respondent was entitled to most or all of the fees, and Mr . Long was merely12 seeking from respondent a gift from the fees. The Hearing Committee found that respondent’s testimony was contradicted by the written record, including respondent’s own letters in which he referred to the lawyers’ d ispute. See In re

Lee , 95 A.3d at 72.

In determining an appropriate san ction for respondent’s miscond uct, the

Board relied on our decision in Martin , a non-misappropriation case involving an attorney’s failure to hold disputed funds in trust. 67 A.3d at 1044. There we found that Martin violated Rules 1.15(a) and (d) 3 when he transferred from his trust account to his operating account an amount he believed to be hi s proper fee, even though he knew the client disputed his entitlement to that fee and the client

instructed him not to distribute the bulk of the settlement fun ds. In re Martin , 67 A.3d at 1043–44. We also found that Martin testified falsely r egarding advice he received from the D.C. Bar Ethics Hotline about the disputed fu nds, and made two false statements on his Virginia Bar application concerning the dispute. Id . at 1054. We explained that “honesty is basic to the practice of l aw,” and although “we have generally imposed relatively short periods of suspensi on for isolated instances of dishonesty, . . . we have imposed relatively longe r suspensions where

3 At the time of the violation in Martin , Rule 1.15(d) was codified as Rule 1.15(c). See In re Martin , 67 A.3d at 1043 n.13.13 dishonesty is accompanied by other serious violations or is pro tracted.” Id . at 1053 (citation and internal quotation marks omitted). We concluded that an eighteenmonth suspension was warranted as Martin’s dishonesty “was both protracted and

intended to conceal or exc use earlier misconduct.” Id . at 1054.

In the Board’s view, respondent’s misconduct here was not as se rious as the

misconduct in Martin , and thus, the imposition of an eighteen-month suspension was not warranted: Respondent’s misconduct arose out of a disp ute with cocounsel, not a client; respondent’s client was not prejudiced b y his misconduct; there was no allegation that he mishandled the underlying case; and the respondent

in Martin engaged in meritless litigation in order to delay payment of t he funds, going so far as to condition payment on the client’s withdrawal of its disciplinary complaint. See In re Martin , 67 A.3d at 1053–54. The Board, however, found that respondent’s false testimony and prior disbarment for misapprop riation were troubling aggravating factors in this case, and thereby recomme nded a one-year suspension. We agree.

While we recognize that respondent has had issues with money management, we find no support in our case law to disbar respon dent absent a finding of misappropriation for the instant Rule 1.15(d) violat ion. Additionally,14 considering that the client in this case was not prejudiced by respondent’s misconduct, and that respondent has accepted responsibility for this violation, disbarment would be too severe a sanction. We thus adopt the B oard’s recommendation of a one-year sus pension because it falls within the wide range of acceptable outcomes, is supported by our case law, and is warra nted under the

circumstances. See In re Daniel , 11 A.3d 291, 301 (D.C. 2011) (imposing a threeyear suspension in a non-misappropriation case in which respond ent violated multiple rules and provided false statements in a sworn affidav it); In re Martin , 67 A.3d at 1053–54 (imposing an eighteen-month suspension in a non

misappropriation case involving se rious dishonesty and interfer ence with the administration of justice).

III. Conclusion

Accordingly, we accept the Board’s decision, and order that res pondent is suspended from the practice of law in the District of Columbia for a period of one year, with reinstatement cond itioned upon compliance with D.C. Bar Rule XI, § 16(c).

So ordered.