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.
D ISTRICT OF COLUMBIA COURT OF APPEALS
No. 1 8

- BG

- 340
I N RE W ENDELL R OBINSON , R ESPONDE N T
. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 377091 ) On Report and Recommendation of the

Board on Professional Responsibili ty ( BD N

- 293

- 12 ) (Argued February 27, 2019 Decided February 20, 2020 ) (Amended May 14 , 2020) * Abraham C. Blitzer for respondent. Hamilton P. Fox, III , Disciplinary Counsel, with whom Jennifer P. Lyman , Senior Assistant Disciplinary Counse l , w as on the brief, for the Office of Disciplinary Counsel

. Before B LACKBURNE

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

.

* We granted respondent’s April 21, 2020, motion to amend the opinion to reflect that respondent has since served his suspension and been reinsta ted

. O n February 20, 2020, this court had suspended respondent from the practice of law on May 30, 2018, and lifted that suspension on October 24, 2019

.2
B LACKBURNE

- R IGSBY , Chief Judge : Disciplinary Counsel charged respondent Wendell Robinson with violating Rule 1 .15 (d) of the D.C. Rules of Professional Conduct for failing to hold disputed funds in trust during the pendency of a dispute with co - counsel. T hough Disciplinary Counsel only charged respondent with violating Rule 1.15(d), the H earing Committee , sua spo nte , considered whether respondent also violat ed Rules 1.15(a) and (c) by in tentionally misappropriating f unds . The Hearing Committee found that respondent violated Rules 1.15 (a), (c), and (d), and recommended that respondent be disbarred. The Board on P rofessional Responsibility (“Board”) agreed that respondent violated Rule 1.15(d), but concluded that the Hearing Committee erred in considering the misappropriation charge under Rule s 1.15(a) and (c)

. The Board rejected the proposed sanction of disbarmen t, and instead recommend ed that respondent be suspended for one year. We accept the Board’s findings and recommended sanction. 1

1 Before the issuance of this opinion, respondent served his suspension and was reinstated to practi ce law . On May 30, 2018, this court suspended respondent pending the final disposition of the underlying proceeding. On July 25, 2019, respondent moved to lift the suspension

. In an October 24, 2019, order, we lift ed respondent’s interim suspension, and ordered respondent to file with this court a D.C. Bar R. XI, § 14(g) affidavit, which we would consider submitted on July 16, 2018 (when he filed the same with the Board). Respondent filed the affidavit with this court on October 25, 2019.3
I.

In September 2009, respondent and three others , D.C. attorneys Leonard L. Long and W. T homas Stovall, II, and Virginia at torney William Thompson , associated to represent Tonyette Bables in a medical malpractice suit in Virginia.
On February 2, 2010, Ms. Bables signed a retainer agreement naming all four as her attorneys . The agreement outlined a contingency

- fee arrangement between attorney and client , but did not specify how the attorneys were to divide the ir fee
among themselves. Respondent conducted the litigation largely on his own and eventually negotiated a settlement

. Before the case settled, the lawyers disagreed

o n how to divide the attorneys’ fees. Respondent assumed that , after paying Mr. Thompson a certain amount for his role as local counsel, the remaining fee s would be distributed based on the work each attorney performed. That understanding was based , at le ast in part , on respondent’s conversation with an Assistant Disciplinary Counsel, who referred him to D.C. Rule of Professional Conduct 1.5(e). 2

2 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 firm may be made only if: (1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility fo r the representation. (c ontinued . . .)4 Respondent testified that Mr. Long admitted respondent did all the work in the

case, which respondent understo od to be a concession that respondent was entitled to all of the attorneys’ fees. Mr. Long and Mr. Stovall , however, testified that they orally agreed with respondent t o pay Mr. Thompson an unspecified amount for his services , and then divide the remainin g fee equally among the three attorneys

. In a letter dated May 16, 2011, Mr. Long rejected respondent’s proposal to split the fees based on the division of labor and suggested submit ting the issue to arbitration

.

In June 2011, Ms. Bables’ s case settled for $600,000, entitling the attorneys to collect $240,000 ( i.e., forty percent of the settlement) in accordance with the retainer agreement. R espondent , however, initially told Ms. Bables that the attorneys would collect only $200,000 (i.e., one - third of the settlement )

. After c o counsel told respondent that the lawyers were actually entitled to $240,000, respondent informed Ms. Bables, who became upset. Respondent testified that he offered to pay Ms. Bables one

- third of the $40,000 difference between th e two (. . . continued) (2) The client is advised, in writing, of the identity of the lawyers who will participate in the representation, of the contemplated division 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 consent to the arrangement; and (4) The total fee is reasonable.5

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 $ 225,000 to be disbursed among respondent , Mr. Long , and M r. Stovall. By August 11, 2011, despite the fact that the three attorneys had not resolved the attorneys’ fees issue, r espondent had paid himself $193,350 and paid Mr. Long and Mr. Stovall each $15,700.

Mr. Long and Mr. Stovall filed a complaint with D isciplinary Counsel, and , on May 20, 2015, Disciplinary Counsel charged respondent with violating Rule
1.15 (d) for failing to keep the dispute d funds in his escrow account. 3 Respondent
concede d , and the Hearing Committee found, that respondent violated Ru le
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 equal parts

. The

3 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 cla imed by the lawyer and another person, or by two or more persons to each of whom the lawyer may have an obligation, the property shall be kept separate by the lawyer until there is an accounting and severance of interests in property. If a dispute arises concerning the respective interests among persons claiming an interest in such property, the undisputed portion shall be distributed and the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.6 Hearing Committee found that respondent “[r]epeatedly testified falsely” during the hearing wh en he stated that Mr. Long agreed that respondent was entitled to all or most of the settlement fees. The Hearing Committee also found that respondent committed misappropriation , which was not included in the Specification of Charges , in violation of Rule s 1.15(a) and (c). Concluding th at respondent violated Rules 1.15 (a), (c), and (d), the Hearing Committee r ecommended that respondent be disbarred

.

The Board agreed that respondent violated Rule 1.15 (d) , but concluded that the Hearing Committee erred w hen it considered the misa ppropriation charge

. Based solely on the Rule 1.15(d) violation, t he Board recommended that respondent be suspended for one year

. Neither Disciplinary Counsel nor
resp ondent dispute s the Rule 1.15(d) violation or the Board’s rej ection of the misappropriation charge. Both Disciplinary Counsel and respondent, however, have filed exceptions to the Board’s recommended sanction. Respondent seeks a thirty

- day suspension, whereas Disciplinary Counsel urges this court to impose disbarm ent.

II.7
“The s cope of our review of the Board’ s Report and Recommendation 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 findings of fact, “unless they are unsupported by substantial 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, w e defer to the Board ’s re commendation unless doing so “ would foster a tendency toward inconsistent dispositions for comparable conduct or would 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 concede s th at he violated Rule 1.15 (d) by failing to keep the disputed fees in a trust ac count pending resolution of the dispute between him and

co - counsel

. Respondent’s concession is also supported by the record

. The Hearin g Committee credited Mr. Long ’s and Mr. Stovall’s testimony that the y, along with respondent, agreed to equally divide the attorneys’ fees

. Their testimony is supported by respondent ’s offer to return one

- third of the difference between what Ms. Bables th ought s he was going to receive in the settlement and8 what she actually received , ref lecting respondent’s understanding that each attorney was entitled to one

- third of the fee. Given that shared understanding,

r espondent was required to place the disputed portion of the attorneys’ fees in a trust account pending resolution of the dispute. Because he did 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. Disciplinary 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)) , s ubject to prior approval by a C ontact Member , an attorney member of the Hearing Committee who may “review and approve or suggest modifications of” Disciplinary Counsel’s recommendations. D.C. Bar R. XI, § 4(e)(5)

. If the Contact Member disagree s with Disciplinary Counsel’s recommendat ion , the cas e is submitted to the Chair of the Hearing 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 not sought by Disciplinary Counsel or appr oved 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).9

In concluding that it was acting within the scope of its authority in “tak[ing] the admittedly extraordinary step of considering charges not levied by Disciplinary Counsel,” t he Hearing Committee relied on In re Harris

- Lindsey , 19 A.3d 784 (D.C. 2011 ) , a case in which we adopted the Board’s reject ion of a petition for negotiated discipli ne in favor of a contested proceeding

. But Harris

- Lindsey does not stand for the proposition that the Hearing Committee is authorized to unilaterally add charges not sought by Disciplinary Counsel. Instead, Harris

Lindsey simply highlights this court’s a uthority to approve (or, in Harris

- Lindsey , reject) a petition for negotiated disposition “in accordance with [the court’s] procedures for the imposition of uncontested discipline.” D.C. Bar R. XI, § 12.1 ( d )

. While the Hearing Committee correct ly recogni z es the 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 presumptive discipline for all but negligent misappropri ation), it overstepped its authority in co nsidering the misappropriation charge here

.

B. Sanction10 Having concluded that respondent violated Rule 1.15(d), we now determine the appropriate sanction. We apply a strong presumption in favor of adopting the Board’ s sanction recommendation as long as i t “falls within the wide range of acceptable outcomes

. ” In re Martin , 67 A.3d 1032, 1053 (D.C. 2013) (quoting In re Elgin , 9 18 A.2d 362, 376 (D.C. 2007)). But “the responsibility for imposing sanctions rests with this court in the first ins tance. ” In re Chapman , 962 A.2d 922, 924 (D.C. 2009). We bas e our determination of sanctions on multiple factors, including “ (1) the seriousness of the conduct, (2) prejudice to the client, (3) whether the conduct involved dishonesty, (4) violation of other disci plina ry rules, (5) the attorney’ s disciplinary history, (6) whether the attorney has acknowledged his or her wrongful conduct, and (7) mitigating circumstances. ” In re Martin , 67 A.3d at 1053. T o foster consistent dispositions, “ we necessarily compare the ins tant case with prior cases in terms of the misconduct at issue, the attorney ’ s disciplinary history, and any legitimate mitigating or aggravating circumstances. ” In re Edwards , 870 A.2d 90, 94 (D.C. 2005)

. The Board recommended that respondent be suspend ed from the practice of law for one year. We adopt that recommendation.

W e agree with the Board that r espondent’s violation of R ule 1.15(d) was serious. Mr. Long and Mr. Stovall communicated to respondent on multiple11
occasions that they disputed respond ent’s proposed division of attorneys’ fees. Yet despite his awareness of the dispute, respondent made multiple payments to himself out of the disputed funds , al l without telling Mr. Long or Mr. Stovall. With respect to the prejudice factor , t he Board not ed that respondent’s failure to
pay co - counsel potentially subjected Ms. Bables to a payment demand from Mr. Long or Mr. Stovall. However, n o such demand was made and there is no evidence that Ms. Bables was otherwise prejudiced by respondent’s misconduct

. T he Hearing Committee did not find that respondent’s misconduct involved dishonesty , but it did find that respondent testified falsely , which warrants a greater sanction

. In re Ekekwe

- Kauffman , 210 A.3d at 798 ; In re Martin , 67 A.3d at 1054 (“E ngaging in dishonest conduct to cover up other misconduct is absolutely intolerable and warrants a greater sanction.” ( cleaned up) )

. A s discussed, because the Hearing Committee erred in considering the misappropriation charge, the Rule 1.15(d) violation is the on ly charge considered here. As to respondent’s disciplinary history, r espondent ’s previous di sbar ment for misappropriation favors a greater sanction here

. See In re Robinson , 583 A.2d 691 (D.C. 1990)

. R espondent , however, has acknowledged his latest misc ondu ct and concedes his Rule 1.15(d) violation here

.12 Respondent seeks a thirty

- day suspension, claiming that his g ood

- faith reliance on Rule 1.5 is a substantial mitigating factor, and that his conduct did not involve dishonesty or misrepresentation. E ven if we were to find that respondent reli ed on his reading of Rule 1.5 in good faith, we must still account for other
seriou s aggravating factors , such as his prior disbarment for misappropriation and his false testimony to the Hearing Committee

. S ee In re Cleaver

- Bascombe , 892 A.2d 396, 413 (D.C. 2006) (consider ing false testimony a significant aggravating factor ). Further, w e decline respondent’s invitation to disturb the findings of the Hearing Committee and Board that respondent testified falsely , M r. Long agreed that respondent was entitled to most or all of the fees, and Mr. Long was merely seeking from respondent a gift from the fees

. The Hearing Committee found that respondent’s testimony was contradicted by the written record , including respond ent’s own letters in which he refer red to the lawyers’ dispute. See In re
Lee , 95 A.3d at 72.

In determining an appropriate sanction for respondent’s misconduct , t he Board relied on our decision in Martin , a non - misappropriation case involv ing a n
attor ney’s failure to hold disputed funds in trust. 67 A.3d at 10 44

. There we found13 that Martin violated Rules 1.15(a) and (d ) 4 when he transferred from his trust account to his operating account an amount he believed to be his proper fee , even though he knew the client disputed his entitlement to that fee and the client instructed him no t to distribute the bulk of the settlement funds. In re Martin , 67 A.3d at 1043

– 44 . We also found that Martin testified falsely regarding advice he received from the D.C. Ba r Ethics Hotline about the disputed funds , and made two false statements on his Virginia B ar application concerning the dispute

. Id . at 1054. We explained that “honesty is basic to the practice of law,” and although “we have generally imposed relatively short periods of suspension for isolated instances of di shonesty, . . . we have imposed relatively longer suspensions where dishonesty is accompanied by other serious violations or is protracted.” Id . at 1053 (citation and internal quotation marks omitted ). We concluded that an eighteen

month suspension was warranted as Martin’ s dishonest y “was both protracted and intended to conceal or excuse earlier misconduct.” Id . at 1054.

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

m isconduct in Martin , and thus, the imposition of an eighteen

- mon th suspension was not warranted: R espondent ’s misconduct arose out of a dispute wit h co

-

4 At the time of the violat ion in Martin , Rule 1.15(d) was codified as Rule 1.15(c). See In re Martin , 67 A.3d at 1043 n. 13.14 counsel, not a client; respondent ’s client was not pr ejudiced by his misconduct; there was no allegatio n that he mishan dled the underlying case; and the respondent
in Martin engaged in meritless litigation in order to delay payment of the 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 10 53

– 54. T he Board , however, found that respondent ’s false testimony and prior disbarment for misappropriation were troubling aggravating factors in this case , and thereby recommended 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 respondent absent a finding of misappropriation for the instant Rule 1.15(d) violation. A dditionally , 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 sa nction. We thus adopt the Board’s recommendation of a one

- year suspension because it falls within the wide range of
accep ta ble outcomes, is supported by our case law , and is warranted under the
circumstances

. See In re Daniel , 11 A.3d 291, 301 (D.C. 2011) ( imposing a three

year suspension in a non

- misappropriation case in which respondent violated multiple rule s and provided false statement s in a sworn affidavit ); In re Martin , 6715
A.3d at 1053

– 54 ( imposing an eighteen

- month suspension in a non

misappropriation case involving serious dishonesty and interference with the administration of justice )

.

III. Conclusion

Accordingly , we accept the Boar d’s decision and recommendation that respondent be suspended from the practice of law in the District of Columbia for a period of one year, with reinstatement conditioned upon compliance with D.C. Bar Rule XI , § 16 (c ). As noted, supra note 1, respondent served his suspension, beginning on July 16, 2018, and has since been reinstated.

So ordered.