In re Laurence F. Johnson , 158 A.3d 913 ( 2017 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-BG-777
IN RE LAURENCE F. JOHNSON, RESPONDENT.
A Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 934398)
On Report and Recommendation of the
Board on Professional Responsibility
(BDN-307-09 and BDN-453-12)
(Argued April 6, 2017 Decided May 4, 2017)
Justin M. Flint for respondent.
William R. Ross, Assistant Disciplinary Counsel, with whom Wallace E.
Shipp, Jr., Disciplinary Counsel, Jennifer P. Lyman, Senior Assistant Disciplinary
Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief, for the
Office of Disciplinary Counsel.
Before BECKWITH and EASTERLY, Associate Judges, and STEADMAN, Senior
Judge.
STEADMAN, Senior Judge: Respondent, Laurence F. Johnson, was charged
by Disciplinary Counsel with multiple violations of the Maryland Lawyers’ Rules
2
of Professional Conduct (MLRPC).1 Respondent is an experienced immigration
attorney and the violations in question stem from two separate immigration
matters. On appeal, respondent claims that the Board on Professional
Responsibility (1) misapplied D.C. Bar Rule XI, § 11 (c) in recommending
independent discipline in a matter for which respondent had already been
disciplined by the Attorney Grievance Commission of Maryland (AGCM), and (2)
recommended an unwarranted sanction for his misconduct, which was greater than
that recommended by the Ad Hoc Hearing Committee. We accept the Board’s
recommendation.
I. Facts and Proceedings
The first matter involved respondent’s representation of Carlina Seminiano.
Respondent entered into a retainer agreement with Ms. Seminiano in April 2001
for the purpose of helping her obtain legal permanent residence in the United
States, a process which included labor certification. Ms. Seminiano paid
respondent approximately $2000 upon signing the retainer agreement. Her delayed
1
A lawyer admitted to our bar may be disciplined here for conduct
occurring in another jurisdiction, and in appropriate cases, as here, subject to
discipline here based on the ethics rules of the other jurisdiction. District of
Columbia Rules of Professional Conduct 8.5 (a), (b).
3
labor certification was re-opened in August 2007 and respondent failed to meet a
filing deadline, essential to the labor certification, in November 2007. On
February 25, 2008, respondent sent a letter to Ms. Seminiano and her employer
indicating that her labor certification application was closed and offered to start a
new application “at a large discount.” Respondent did not return the $2000 to Ms.
Seminiano until June 2012, after an investigation into respondent’s conduct had
begun.
The second matter involved respondent’s representation of Secundo Jacinto
Jerez Minchala after he was ordered removed from the United States in 2011. Mr.
Minchala retained respondent’s services to appeal from this removal order, which
had a filing deadline of June 2, 2011, and paid respondent a total of $2060 through
various monthly payments between May and October 2011. Respondent never
filed the appeal. Respondent also deposited the advanced legal fees into his
office’s operating account without informed written consent from Mr. Minchala.
Respondent wrote Mr. Minchala a letter on June 23, 2011, intending to
terminate his representation. Despite this letter, respondent’s office continued to
bill Mr. Minchala, and respondent did not inform Mr. Minchala that he failed to
file an appeal until February 28, 2012, at which time respondent also refunded Mr.
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Minchala $2000. Once Mr. Minchala retained new counsel, respondent refused to
provide a letter stating that he failed to file an appeal, believing it would harm his
own interests. Respondent refunded the final $60 in March 2014 after the initial
Specification of Charges was filed in this case. The AGCM reprimanded
respondent for misconduct related to his representation of Mr. Minchala,
acknowledging that he violated MLRPC Rules 1.1, 1.3, and 8.4 (d). This
jurisdiction’s charges went beyond the Maryland reprimand and alleged additional
MLRPC violations.
The Ad Hoc Hearing Committee determined that respondent warranted
Kersey mitigation for the period of misconduct associated with Ms. Seminiano, but
not the misconduct associated with Mr. Minchala.2 The Hearing Committee
concluded that while representing Ms. Seminiano, respondent violated MLRPC
Rules 1.1 (competence) and 1.3 (diligence). While representing Mr. Minchala, the
Committee found that respondent violated Rules 1.1, 1.3, 1.4 (keeping the client
2
Respondent asserted that any discipline should be mitigated due to
disability according to In re Kersey, 520 A.2d 321 (D.C. 1987). In 2004,
respondent developed a skin condition that made it difficult to concentrate and led
to fatigue and depression. The Hearing Committee concluded that this condition
contributed to respondent’s misconduct in 2007. Around the time of respondent’s
second offense he exhibited symptoms of depression, but the Hearing Committee
concluded that respondent’s “ability to represent Mr. Minchala was not impaired to
the point that Respondent was unable to comply with the ethical requirements of
practicing law.” (emphasis in original).
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reasonably informed of the status of the matter), 1.8 (h)(1) (making an agreement
with the client prospectively limiting the lawyer’s liability to the client for
malpractice), 1.15 (a) (holding the client’s funds in a separate account), 1.15 (c)
(failure to deposit fees into a client trust account), 1.16 (d) (properly protecting the
client’s interests on termination of the representation), 8.4 (c) (conduct involving
dishonesty, fraud, deceit, or misrepresentation), and 8.4 (d) (conduct that seriously
interferes with the administration of justice). Ultimately, the Hearing Committee
recommended a suspension of thirty days, with the entire suspension stayed in
favor of a two-year period of probation.
Respondent filed a general notice of exceptions to the Hearing Committee
Report that indicated he intended to later file detailed exceptions, and Disciplinary
Counsel filed a notice of some specific exceptions. However, subsequently they
jointly withdrew all exceptions to the Report and Recommendation of the Ad Hoc
Hearing Committee and proceeded on review to the Board on Professional
Responsibility without briefing or argument. On review, the Board adopted the
Hearing Committee’s report except its conclusions as to the recommended length
of suspension. Instead, the Board recommended a suspension of ninety days, with
sixty days stayed in favor of one year of probation.
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II. D.C. Bar Rule XI, § 11 (c)
Respondent first argues that the disciplinary matter related to his actions
representing Mr. Minchala should be dismissed because the AGCM has already
reprimanded respondent for the misconduct. His argument rests on subsection (c)
of D.C. Bar Rule XI, § 11 (Reciprocal Discipline) that reads as follows:
Reciprocal discipline . . . . shall not be imposed for
sanctions by a disciplining court such as public censure
or reprimand that do not include suspension or probation.
For sanctions by another disciplining court that do not
include suspension or probation, the Court shall order
publication of the fact of that discipline by appropriate
means in this jurisdiction.
Pursuant to this provision, respondent asserts, the only permissible course of action
under our rules relating to the Minchala incident was to publish in the District the
fact of the Maryland reprimand.
The Hearing Committee heard this argument and rejected it. Respondent
took no exception to this conclusion before the Board but, as already stated, let the
Hearing Committee report be submitted to the Board without briefing or
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argument.3 “We have consistently held that an attorney who fails to present a point
to the Board waives that point and cannot be heard to raise it for the first time
here.” In re Green, 136 A.3d 699, 700 (D.C. 2016) (quoting In re Holdmann, 834
A.2d 887, 889 (D.C. 2003)). While we re-emphasize that arguments to this court
should ordinarily be presented to the Board to ensure proper appellate review, in
this case the Board explicitly acknowledged the existence of the issue and
concurred with the Hearing Committee’s rejection of the argument. In this
posture, and to put the question to rest, we have determined to address the tardy
argument.
We are in no way persuaded by respondent’s argument. Section 11 of D.C.
Bar Rule XI sets forth the procedures to be followed where a sanction is to be
imposed in the District based upon disciplinary action in another jurisdiction. It
does not affect the broad power of Disciplinary Counsel to institute fresh
proceedings against an attorney based on the same conduct. See D.C. Bar R. XI,
§ 6 (a)(2) (“Disciplinary Counsel shall have the power and duty . . . [t]o investigate
all matters involving alleged misconduct by an attorney subject to the disciplinary
3
Board on Professional Responsibility Rule 13.5 states that “[i]f no notice
of exceptions is filed within the time allotted, the rights of the parties to brief and
argue before the Board shall be waived, and the Board shall take action based on
the record.”
8
jurisdiction of this Court which may come to the attention of Disciplinary Counsel
or the Board from any source whatsoever, where the apparent facts, if true, may
warrant discipline.”); see also In re Fitzgerald, 982 A.2d 743, 744 (D.C. 2009)
(acknowledging the option of the Board on Professional Responsibility to either
impose reciprocal discipline or proceed de novo); In re Greenspan, 910 A.2d 324,
343 (D.C. 2006) (acknowledging that Disciplinary Counsel may elect to proceed
with an original disciplinary action, despite the greater burden it must bear in doing
so); In re Perrin, 663 A.2d 517, 523 (D.C. 1995) (“[W]e are not prepared to
construe Section 11 (c) as requiring us to permit foreign discipline to trump the
results of an exhaustive original disciplinary proceeding[] here.”). While these
cases preceded the streamlining of the procedures for dealing with reciprocal
discipline introduced by the 2008 amendments of that section, there is no
indication of any intent to narrow the long-recognized power to bring an
independent proceeding. Thus, Disciplinary Counsel operated well within its
authority in proceeding with original discipline in the matter of Mr. Minchala.
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III. Recommended Sanction
Respondent also argues that the recommended discipline by the Board was
unwarranted, especially given that the Hearing Committee did not recommend a
period of active suspension. It is the Board, however, that has the ultimate
responsibility to make its recommendation to this court. “This court reviews the
Board’s legal conclusions de novo.” In re White, 11 A.3d 1226, 1228 (D.C. 2011).
We also “retain[] the ultimate choice of sanction,” In re Scanio, 919 A.2d 1137,
1142 (D.C. 2007) (internal quotation marks omitted), but, by our own rules, we
will accept the Board’s recommendations “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 (h)(1). This standard dictates that “if the
Board’s recommended sanction falls within a wide range of acceptable outcomes,
it will be adopted and imposed.” In re Scanio, 919 A.2d at 1142.
In deciding the nature and length of disciplinary sanctions, the Hearing
Committee and Board consider numerous factors:
(1) the seriousness of the conduct at issue; (2) the
prejudice, if any, to the client which resulted from the
conduct; (3) whether the conduct involved dishonesty
and/or misrepresentation; (4) the presence or absence of
violations of other provisions of the disciplinary rules[;]
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(5) whether the attorney had a previous disciplinary
history; (6) whether or not the attorney acknowledged his
or her wrongful conduct; and (7) circumstances in
mitigation of the misconduct.
In re Cole, 967 A.2d 1264, 1267 (D.C. 2009) (quoting In re Thyden, 877 A.2d 129,
144 (D.C. 2005)).
The Board departed from the Hearing Committee’s recommendation of a
thirty-day suspension, stayed in favor of two years of probation, emphasizing that
respondent’s misconduct involving Mr. Minchala “was serious—involving
dishonesty, commingling and interference with the administration of justice, in
addition to neglect.”4 Moreover, the matter involving Mr. Minchala did not
warrant Kersey mitigation and was respondent’s second offense. The Board
concluded that “[w]hen examining other cases to determine the appropriate
sanction here, the range of sanctions for comparable misconduct supports the
imposition of a 90-day suspension.”5
4
The Board retains the ability to “affirm, modify, or expand the findings
and recommendation of the Hearing Committee.” Board on Professional
Responsibility Rule 13.7.
5
The Board also, without explanation, reduced the probationary period
from two years to one. No objection is made to that modification of the Hearing
Committee’s recommendation.
11
Respondent argues that almost none of the cases cited by the Board are
appropriately similar to the case at hand, except for In re Cole, 967 A.2d 1264(D.C. 2009). In Cole, the attorney received a thirty-day suspension for violating
Rules 1.1 (a) and (b); 1.3 (a), (b), and (c); 1.4 (a) and (b); and 8.4 (c) and (d)
stemming from one immigration matter. 967 A.2d at 1265 n.3, 1266, 1270. The
attorney failed to file an asylum application and then lied to his client about the
application’s status. Id. at 1265. While the attorney’s actions constituted serious
misconduct, the Board agreed to a thirty-day suspension because “he had no prior
misconduct, displayed a high level of contrition, sought to mitigate the
consequences of his action, and presented two favorable character witnesses.” Id.
at 1266 (internal quotation marks omitted). This case is distinguishable from Cole
on key factors, as Disciplinary Counsel correctly points out. While respondent
presented several favorable character witnesses, respondent’s course of misconduct
stemmed from two separate immigration matters; his acknowledgement of his
misconduct was, as the Hearing Committee noted, “at best, equivocal”; he did not
cooperate with Mr. Minchala’s subsequent counsel out of self-interest; and he
violated additional rules (Rules 1.8 (h)(1), 1.15 (a) and (c), and 1.16 (d)).
The Board compared this case to others where similar sentences were
imposed, such as In re Perez, 828 A.2d 206 (D.C. 2003). In Perez, this court
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followed the recommendation of the Board, suspending an attorney for sixty days
for “protracted neglect and intentional conduct that resulted in prejudice and
damage to a vulnerable client,” where the Hearing Committee had initially
recommended a thirty-day suspension. 828 A.2d at 206 & n.1. Sanctions for
violations of somewhat similar groupings of rules in other cases have ranged from
a forty-five-day suspension,6 to a four-month suspension,7 to yet other ranges of
suspensions with partial stays in favor of probation.8
6
E.g., In re Fox, 35 A.3d 441, 441-42 (D.C. 2012) (imposing a forty-five
day suspension, on an already-suspended attorney, for violations of Rules 1.1 (a)
and (b), 1.3 (a) and (c), and 1.4 (a) and (b) where the attorney failed to keep a
client informed of her claim, failed to file a lawsuit on her behalf, and misinformed
her of the status of her case).
7
E.g., In re Schoeneman, 891 A.2d 279, 280, 283 (D.C. 2006) (imposing a
four-month suspension for violations of Rules 1.1 (a), 1.3 (a) and (b), 1.4 (a), 8.4
(c) and (d), and 1.16 (d), in neglecting three employment discrimination matters in
federal court).
8
E.g., In re Askew, 96 A.3d 52, 53-54, 62 (D.C. 2014) (imposing a six-
month suspension with all but sixty days stayed for violations of Rules 1.1 (a) and
(b), 1.3 (a), 1.4 (a) and (b), 1.16 (d), 3.4 (c), and 8.4 (d) where the attorney
“intentional[ly] and virtually complete[ly] neglect[ed] . . . her court-appointed
client”); In re Thai, 987 A.2d 428, 429-31 (D.C. 2009) (imposing a suspension of
sixty days with thirty days stayed in favor of one year of probation for violations of
Rules 1.1 (a) and (b), 1.3 (a) and (c), 1.4 (a), and 1.16 (d) in representing a client in
an immigration matter).
13
In determining an appropriate sanction, all cases turn on the totality of
circumstances that are presented, and no two cases will be exactly alike. We
conclude that the judgment of the Board as to an appropriate sanction is reasonable
and within the ambit of prior cases. Accordingly, we adopt the Board’s
recommendation, and it is hereby
ORDERED that Laurence F. Johnson is suspended from the practice of law
in the District of Columbia for a period of ninety (90) days, with sixty (60) days
stayed in favor of one year of probation subject to the conditions outlined by the
Board on Professional Responsibility.9
9
The Board on Professional Responsibility set forth the following
unchallenged conditions on respondent’s probation:
(1) During the first six months of the probationary
period, Respondent shall take at least six hours of
continuing legal education coursework preapproved by
Disciplinary Counsel that include the proper drafting of
client retainer agreements, the proper handling of
retainers and advance payment of fees by clients, and the
proper operation of attorney escrow accounts containing
such retainers and fees. Respondent shall provide
Disciplinary Counsel with proof of attendance at such
continuing legal education within 30 days after
attendance at the approved course.
(2) At the end of each successive 90-day period
following the start of probation, Respondent shall file an
affidavit with the Board and Disciplinary Counsel stating
(continued…)
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(…continued)
that he believes he is fully capable both physically and
mentally to continue practicing law, which affidavit shall
be supported by one or more letters from a physician or
physicians of Respondent’s choice, dated within the 30
days prior to the date of Respondent’s affidavit, stating
that s/he has examined Respondent and finds that
Respondent is fully capable both physically and/or
mentally to continue practicing law; provided, if either
Respondent or the examining physician(s) shall believe
Respondent has any physical or mental condition that
may affect Respondent’s continuing practice of law, the
affidavit/supporting letter shall describe such condition in
reasonable detail.
(3) Respondent shall execute an authorization form
waiving any physician-patient or similar privilege to the
extent necessary to permit the physician(s) to release
information to the Board and/or Disciplinary Counsel,
and/or to testify at a hearing regarding Respondent’s
disability and compliance with the terms of probation and
fitness to practice law, as provided by Board Rule 18.1.
(4) Respondent shall not be required to notify clients of
the probation.
(5) During the probationary period, the Board shall retain
jurisdiction to require any additional action or proceeding
regarding Respondent in light of information the Board
receives pursuant to condition (2) and/or condition (3)
specified above.
(6) Should Respondent violate the terms of his probation
or commit any additional violation of the MLRPC or the
District of Columbia Rules of Professional Conduct, he
will be subject to revocation of his probation.
(continued…)
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So ordered.
(…continued)
In addition, as the Board recommends pursuant to Board Rule 18.1 (a),
respondent must accept the terms of probation within thirty days of the date
of the court’s order by filing a statement with the Board on a form prepared
by the Board’s Executive Attorney or countersigning the Board order
implementing the probation. If respondent does not file this statement with
the Board, the full period of suspension will take effect without further order
from the court.