In re Roy L. Person, Jr. ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-BG-586
IN RE ROY L. PEARSON, JR., RESPONDENT
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 955948)
On Report and Recommendation
of the Board on Professional Responsibility
(15-BD-31)
(Argued January 9, 2020 Decided June 4, 2020)
Roy L. Pearson, Jr., pro se.
Joseph Charles Perry, Assistant Disciplinary Counsel, with whom Hamilton
P. Fox, III, Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant
Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.
Before FISHER and EASTERLY, Associate Judges, and STEADMAN, Senior
Judge.
PER CURIAM: The Board on Professional Responsibility (the “Board”)
concluded that the respondent, Roy L. Pearson, Jr., violated two of the District of
Columbia Rules of Professional Conduct: Rule 3.1 and Rule 8.4(d).1 Though the
1
Disciplinary Counsel also charged Pearson with violating Rule 3.2(a)
(delaying a proceeding “solely to harass or maliciously injure another”). However,
(continued…)
2
Ad Hoc Hearing Committee (the “Hearing Committee”) recommended a thirty-day
suspension, stayed during a two-year period of probation, the Board disagreed and
recommended a ninety-day suspension without a stay. We agree with the Board’s
conclusion that Pearson violated both rules and adopt the Board’s recommendation
as to sanction.
I. Factual Background
The allegations of misconduct arise from the litigation culminating in
Pearson v. Chung, 961 A.2d 1067 (D.C. 2008).2 In that case, Pearson sued three
defendants (Soo Chung, Jin Nam Chung, and Ki Y. Chung) who jointly owned and
operated Custom Cleaners, a dry cleaning business. Id. at 1069. The dispute
originated with Pearson’s allegation that the Chungs lost a pair of pants that he had
brought to Custom Cleaners for alterations. Pearson initially demanded $1,150 in
(…continued)
the Hearing Committee found that Disciplinary Counsel had not proven a violation
of that rule, and the Board endorsed that finding. Disciplinary Counsel did not
take exception to this finding, so the issue is not before us.
2
Respondent has disputed the Hearing Committee’s and the Board’s
understanding of the operative facts throughout his brief. As the Board adopted
the Hearing Committee’s factual findings, and they are supported by substantial
evidence in the record, we accept them. Much of our discussion of the facts is
based upon the Hearing Committee’s report. That report, in turn, often relied upon
the record of the litigation in the Superior Court and this court.
3
compensation. He then filed a lawsuit in the Superior Court claiming that
defendants had violated the District of Columbia Consumer Protection Procedures
Act, D.C. Code §§ 28-3901 to -3913 (2013 Repl. & 2019 Supp.) (“CPPA”), and
committed common law fraud, negligence, and/or conversion. Pearson’s claims
rested on his interpretation of three signs in the Chungs’ store: “Satisfaction
Guaranteed,” “Same Day Service,” and “All Work Done on Premises.” In the
initial complaint, he sought at least $15,000 in compensation for emotional distress
and $15,000 in punitive damages from each defendant.
Pearson’s demands for compensation escalated dramatically as the case went
on. His claims for emotional damages increased to $3,000,000 by trial. He
asserted that he was entitled to $90,000 to obtain a rental car so he could travel to a
different dry cleaner in the city. He claimed that he had expended 1,200 hours of
work on the matter, worth $500,000 in attorney’s fees. He sought prospective
relief requiring the Chungs to pay him $10,000 within twenty-four business hours
if he notified them that they were not providing him with acceptable service.3 His
damages theories often included multiplying his claims by three (for each
defendant), by two (for his separate statutory and common law claims), by three
3
We note that, by trial, the Chungs did not even have the “Satisfaction
Guaranteed” sign on display. Pearson v. Chung, 961 A.2d at 1073.
4
(for treble damages under the CPPA), by three (for each sign), by seven (for each
CPPA subsection allegedly violated), and/or by every single day that a particular
sign had been on display within the statute of limitations (under his theory that
each day represented a separate violation of the statute and was independently
compensable). By the time the Joint Pre-Trial Statement was filed, Pearson
claimed that he was owed more than $67,000,000 in compensatory and punitive
damages.
Pearson’s theories of liability likewise expanded — or at least were clarified
as being extremely expansive — as the litigation progressed. In his motion for
partial summary judgment, Pearson claimed that the “Satisfaction Guaranteed”
sign represented “an unconditional and unlimited guarantee of satisfaction, as a
matter of law” (emphasis in original) so that any customer who claimed
dissatisfaction, regardless of whether the claim was made in good faith, could
demand any compensation whatsoever. Custom Cleaners would then have to meet
that demand, no matter what it was, in order to resolve the customer’s
dissatisfaction. Pearson testified at trial that this would include situations in which
the Chungs — or any other provider — knew that the customer was lying and/or
when the customer demanded an exorbitant amount of money, such as a trillion
dollars. Respondent’s theories regarding the other two signs were similarly
5
expansive. For example, in his trial brief, Pearson listed as an “undisputed fact”
that the “Same Day Service” sign meant that “any customer request for any of
defendants’ service would be completed the same day” (emphasis in original). The
trial court granted judgment for the Chungs on this claim as a matter of law
because Pearson’s “Same Day Service” theory was “completely unreasonable,”
failing to consider any other factors, such as when customers dropped off the
clothes, how many items they wanted serviced, what kind of services they were
requesting, and whether customers asked for or even desired same day service.
As the case progressed, the trial court repeatedly expressed concerns about
Pearson’s characterizations of case law, statutes, and the court’s own orders. In
one instance, the court pointed out that Pearson had misquoted a case, attempting
to imply that it had involved an identical “Satisfaction Guaranteed” sign. The
court reminded Pearson that he had “an obligation to the Court to be accurate in the
representations you make with regard to what cases are about.” Pearson initially
conceded that he had misquoted the case and apologized, but later filed a
“Correction,” attempting to rescind that admission, because he claimed that there
was no “rational basis for distinguishing the meaning of the term ‘unconditional
guarantee’ from the meaning of the term ‘satisfaction guaranteed’ . . . . In
6
plaintiff’s view, . . . the two terms are indistinguishable in substance and
meaning.”4
At another point, the trial court quoted from a prior discovery order to rebut
Pearson’s contention that the discovery deadline had been implicitly extended.
Pearson also made repeated accusations of bias against Judge Neal Kravitz in a
pair of belated motions for a jury trial.5 Judge Kravitz denied the motions as being
based on repetitive, “false and wholly unsubstantiated” factual claims.
Throughout litigation, Pearson cited 16 C.F.R. § 239.3(b) for his proposition
that “[t]he inherently deceptive nature of an unqualified guarantee that turns out to
be qualified is well chronicled in the law” (emphasis in brief) and to support his
favored interpretation of the sign — that the sign provided an unqualified
guarantee, entitling the customer, in his sole discretion, to determine whatever
compensation would subjectively satisfy him. However, Pearson consistently
4
The case in question, Montgomery Ward & Co. v. F.T.C., 379 F.2d 666
(7th Cir. 1967), involved specific warranties touted in newspaper advertisements
that differed from the written guarantee certificates actually provided with the
advertised products. The certificates imposed additional restrictions on the
warranties. Id. at 670. The case did not involve a “Satisfaction Guaranteed” sign.
5
Judge Kravitz handled pretrial motions, but Judge Judith Bartnoff presided
over the trial.
7
refused to acknowledge the preceding sentence in 16 C.F.R. § 239.3(a), which
stated that “[a] seller or manufacturer should use the terms ‘Satisfaction Guarantee’
. . . or similar representations in advertising only if the seller or manufacturer, as
the case may be, refunds the full purchase price of the advertised product at the
purchaser’s request,” directly supporting the Chungs’ legal position.
Summing up Pearson’s approach to litigation, the trial court observed that
this was “a case that, in the Court’s view, has been delayed unnecessarily by
plaintiff’s disproportionate approach to the discovery process and by the plaintiff’s
active but largely unsuccessful motions practice” and “the Court has significant
concerns that the plaintiff is acting in bad faith and with an intent to delay the
proceedings.” In adopting the Hearing Committee’s factual findings, the Board
agreed that Pearson’s litigation choices made the case unduly time and resource-
intensive, especially considering that the suit arose from a claim that the cleaners
had lost a pair of pants. Exemplifying his “voluminous and at times excessive”
discovery and motions practice,6 Pearson violated a court order prohibiting more
discovery, submitted document requests that the trial court found to be “too
6
Although the Board found Pearson’s discovery and motions practice
relevant to whether Pearson interfered with the administration of justice in
violation of Rule 8.4(d), the Board also found that Disciplinary Counsel had not
established that the practices constituted a violation of Rule 3.2(a).
8
intrusive, time-consuming, and harassing to be enforced,” and then followed those
requests with another set of requests that was “even more burdensome, intrusive
and calculated to harass.” The Board summarized these issues by stating that the
Chungs were “forced to endure a major litigation that more properly belonged in
Small Claims court.”
The Board found that Pearson’s litigation strategy and exorbitant demands
had a direct impact on the amount of resources expended by both the judicial
system and by defendants. During litigation, the Chungs made three offers of
judgment, the largest being in the amount of $12,000, all of which Pearson
rejected. At another point, after the trial had concluded in the Chungs’ favor, the
defendants withdrew a motion that could have allowed them to recover attorney’s
fees and costs, along with the imposition of Rule 11 sanctions, because the
publicity generated by the case had allowed them to crowd-source the money
necessary to pay their legal fees. They did so, hoping that Pearson would “put this
matter behind them.” Instead, Pearson argued that he should be awarded expenses
and attorney’s fees for opposing the motion. The court responded by observing
that:
The merits of the [Chungs’] motions are not directly
before the Court, except by way of the plaintiff’s request
for attorney’s fees or expenses. The Court recognizes
that the Consumer Protection Procedures Act was
9
enacted to benefit consumers and that an award of
attorneys’ fees against a consumer plaintiff would be
very unusual. But this is an unusual case, in which the
plaintiff attempted to take what was at best a
misunderstanding about one pair of pants and expand it
to a claim of $67 million, based on legal theories that —
once they clearly were articulated — were unsupported
in fact or in law.
At that point, Pearson appealed to this court, see 961 A.2d 1067, and continued to
pursue his legal theories after losing that appeal, filing a Petition for Rehearing or
Rehearing En Banc.
In addition to reviewing the respondent’s conduct in the Pearson v. Chung
litigation, the Board also noted that Pearson had shown no remorse throughout the
disciplinary process, but had instead chosen to litigate the charges with the very
same tactics that had brought him to the disciplinary system in the first place. The
Board considered this conduct only when analyzing aggravating and mitigating
factors to determine what sanction to recommend; it played no role in the Board’s
consideration of whether Pearson had violated the Rules of Professional Conduct.
The Board found that, instead of grappling with the allegations against him
— or the opinions of the trial court and this court — Pearson had continued to push
the same legal theories as not only permissible, but “unambiguous, obvious,
deriving from plain meaning, based on plain English, subject to no debate, and
10
well-established” (internal quotation marks omitted). The Board also found that
Pearson “continued to engage in frivolous motions practice” before the Hearing
Committee and the Board and noted that Pearson went so far as to accuse
Disciplinary Counsel “of engaging in the very same types of misconduct that are
the bases for the charges against Respondent.”7 Because of these aggravating
factors and the overall seriousness of the misconduct, the Board rejected the
Hearing Committee’s recommendation of a thirty-day suspension, stayed during a
two-year period of probation, and instead recommended a ninety-day suspension
without a stay.
II. Standard of Review
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 Board’s
factual findings “if they are supported by substantial evidence in the record.” In re
Howes, 52 A.3d 1, 12 (D.C. 2012); see also D.C. Bar R. XI, § 9(h)(1). We also
place “great weight” on credibility determinations made by the Board and the
7
Pearson has repeated these accusations in his brief to this court, describing
Disciplinary Counsel’s efforts as a “crude and inept” “make-up-the-violations-as-
we-go-along effort to fashion something with which to literally hang the
Respondent.” He also refers to the Board and Hearing Committee as “proxies for
racists everywhere” and calls this court’s decision in Pearson v. Chung “moronic.”
11
Hearing Committee because of the Hearing Committee’s unique “opportunity to
observe the witnesses and assess their demeanor.” In re Sabo, 49 A.3d 1219, 1224
(D.C. 2012). As for sanctions, under D.C. Bar Rule XI, § 9(h)(1), we “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.” See also In re Cleaver-Bascombe, 986 A.2d 1191, 1194 (D.C.
2010) (“Generally speaking, if the Board’s recommended sanction falls within a
wide range of acceptable outcomes, it will be adopted and imposed.”). We review
the Board’s conclusions of law de novo. In re Saint-Louis, 147 A.3d 1135, 1147
(D.C. 2016).
III. Analysis
A. Rule 3.1
Rule 3.1 provides that “[a] lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a basis in law and fact for doing
so that is not frivolous, which includes a good-faith argument for an extension,
modification, or reversal of existing law.” In determining whether Rule 3.1 has
been violated, “consideration should be given to the clarity or ambiguity of the
12
law.” In re Spikes, 881 A.2d 1118, 1125 (D.C. 2005). The “plausibility of the
position taken[] and the complexity of the issue” are also relevant factors. Id.
Ultimately, a position “is frivolous when it is wholly lacking in substance and not
based upon even a faint hope of success on the legal merits.” Id. (internal
quotation marks omitted).
Attorneys have a continuing responsibility to make an “objective appraisal
of the legal merits of a position,” asking how a “reasonable attorney” would
evaluate “whether a claim is truly meritless or merely weak.” In re Yelverton, 105
A.3d 413, 425 (D.C. 2014). “The distinction between a weak claim and a frivolous
or meritless one can be difficult to pinpoint, and in making that determination
under the ethical rules we have relied on cases applying Superior Court Civil Rule
11 and our Rule 38.” Id. at 424.
In this case, the Board took care to explain that “[a]ttorneys in the District of
Columbia should not fear discipline for making aggressive and creative
arguments.” It emphasized that “[f]rivolous is more than ultimately meritless, and
the good faith exception to a Rule 3.1 violation allows a wide range of creative and
aggressive challenges to existing law” (internal quotation marks omitted). But the
Board also explained that, while a Rule 3.1 violation may not have been clear at
13
the outset, “[a]s his lawsuit progressed, Respondent’s liability and damages
arguments morphed into the preposterous.” It was “the entire course of
Respondent’s extreme conduct over the course of the suit,” not a showing “that the
claims were frivolous when first made,” that convinced the Board that Pearson had
violated Rule 3.1.
We agree that this distinction is crucial and that, as his theories expanded
and his tactics grew more extreme, respondent failed to comply with his continuing
responsibility to conduct an objective evaluation of the merits of his claims.
Yelverton proves instructive. The attorney in that case “filed numerous repetitive
and unfounded motions in Superior Court and in this court, and . . . twice asked the
trial judge to recuse himself from the case when he lacked any objective reason to
do so.” 105 A.3d at 426. The Board found that Pearson’s motions and discovery
practices were similarly repetitive — both during the initial litigation and during
this disciplinary proceeding — and that his unfounded allegations of bias against
Judge Kravitz were strikingly similar to the motion to disqualify in Yelverton.8
These conclusions are well supported by the record.
8
Because the quote from Yelverton refers to “the trial judge,” we pause to
make clear that Pearson’s accusations of bias were directed against Judge Kravitz,
who presided over pretrial motions, not against Judge Bartnoff, the trial judge.
14
Pearson’s liability and damages claims compounded the mischief of his
motions and discovery practice. Pearson protests that his liability claims cannot
fairly be deemed frivolous, as he survived summary judgment and a motion to
dismiss and was allowed to proceed to trial. The trial court also opted not to
sanction him. But, while relevant, those decisions are not dispositive of whether
the legal theories ultimately were frivolous.9 Pearson’s claims continually
expanded throughout litigation and his liability and damages theories became more
clear — and more outlandish — as the case progressed. As noted above, the trial
court granted judgment as a matter of law rejecting Pearson’s claims based on the
“Same Day Service” sign. In light of the entire record, surviving summary
9
Pearson brings to our attention the following quote for the proposition that
surviving summary judgment is “an absolute bar” to finding a Rule 3.1 violation:
“[f]or a trial judge to rule in favor of a party, the trial judge necessarily must
conclude that the party’s position is ‘well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification, or reversal of
existing law.’” Montgomery v. Jimmy’s Tire & Auto Ctr., Inc., 566 A.2d 1025,
1030 (D.C. 1989) (quoting Indianapolis Colts v. Mayor & City Council of
Baltimore, 775 F.2d 177, 181 (7th Cir. 1985), and Fed. R. Civ. P. 11). However,
similar to his selective quotation of 16 C.F.R. § 239.3(b) and other laws and cases
during the Pearson v. Chung litigation, Pearson ignores relevant context that
makes the asserted proposition untenable. Jimmy’s Tire explicitly contemplates, in
the very next sentence, that “[i]t may be that [the] denial of summary judgment . . .
can be reconciled with . . . [the] finding that those papers were sanctionable” and
the court remanded for an explanation of the trial court’s Rule 11 finding. While
the denial of summary judgment is relevant to the inquiry, Jimmy’s Tire certainly
does not stand for the proposition asserted in Pearson’s brief that surviving
summary judgment “is determinative” (emphasis in original).
15
judgment cannot be taken as a dispositive ruling that Pearson’s theories had legal
support. Instead, as noted by the trial court and quoted by the Board, once
Pearson’s legal theories “clearly were articulated,” they “were unsupported in fact
or in law.”
It is also true that, as a technical matter, some of Pearson’s theories
presented a matter of first impression. But the lack of a definitive holding
precluding a legal theory does not mean that it cannot be frivolous.10 “Were this
not the case, a patently frivolous but novel legal argument — ‘novel,’ perhaps,
because no litigant would dream of bringing it with a straight face — would not be
sanctionable.” Ozee v. Am. Council on Gift Annuities, Inc., 143 F.3d 937, 941 (5th
10
Pearson points to cases such as District of Columbia v. Fraternal Order
of Police, Metro. Police-Labor Comm., 691 A.2d 115, 119 (D.C. 1997), as support
for the position that “[w]here the applicable statute offers no clear answer and there
is no case precedent contrary to the position, it cannot be said that the case has no
chance of success; therefore, its assertion will not be sanctionable.” As an initial
matter, the Board found, and we agree, that the applicable statute and cases did
offer a clear answer. But additionally, similar to respondent’s citations to Jimmy’s
Tire discussed in note 9, above, this selective quotation does not support nearly as
rigid a proposition as Pearson suggests. A close reading of Fraternal Order
demonstrates why respondent’s situation differs significantly; there, “[r]ather than
ignoring the precedent most likely relevant, the District brought it to the court’s
attention at the outset and sought to distinguish it on a plausible basis, a factor
demonstrating good faith and weighing against the imposition of sanctions.” 691
A.2d at 120. Here, the Board found that Pearson had done quite the opposite,
consistently combining his unbounded theories of liability with an obstinate refusal
to recognize relevant portions of regulations, case law, and even the procedural
history of the instant litigation.
16
Cir. 1998). We agree with the Board that this is one such case. The total damages
figure is shocking in itself; simply put, Pearson asked the trial court to award him
$67,292,000 because of his dissatisfaction with defendants’ dry cleaning services.
But the constituent parts of that $67,292,000 total are equally troubling. Pearson
asked for $90,000 to rent a car, a facially disproportionate request in response to
the alleged need to patronize another dry cleaner. He claimed that his emotional
distress over a few common and innocuous signs and a lost pair of pants was so
severe that he was entitled to $3,000,000 in damages. Perhaps most remarkable
was his request for a judgment obligating the Chungs to provide him with ongoing
services and to pay him $10,000 immediately based on nothing more than his own
request, a demand that the Hearing Committee called “patently non-cognizable,”
was made after the defendants had already taken down the signs at the heart of the
controversy, was tethered to no statutory basis, and was completely out of
proportion to any likely shortcoming in dry cleaning service. These damages
theories were utterly frivolous, implausible to the point of having “not even a faint
hope of success,” and they violated Rule 3.1. Spikes, 881 A.2d at 1125 (internal
quotation marks omitted).
We agree with the Board that Pearson’s theories of liability also violated
Rule 3.1. Under Pearson’s interpretation of the signs in question, “customers”
17
acting in bad faith could bankrupt any business in the District with such a
commonplace sign, as he acknowledged no requirement of good faith by the
customer, no limitation on the demands the customer could make, and no
allowances for “basic common sense.” Pearson v. Chung, 961 A.2d at 1075.
Pearson did not make the required objective inquiry into whether his liability
claims had even a faint hope of success. Instead, he did the opposite, steadfastly
refusing to acknowledge contrary legal authority, engaging in extensive puffery,
and pressing his preferred interpretations of the signs even after they were rebuffed
by his own witnesses at trial. Indeed, even in his filings in this disciplinary case,
he has continued to refer to his theories as “indisputable.” As the Hearing
Committee noted, “Respondent has never, to this day, made the requisite objective
appraisal.”
Compounding the frivolousness of his liability and damages claims, Pearson
regularly exaggerated or misrepresented procedural facts, case law, and statutory
support for his position. As this court noted, he had “no pertinent authority” to
support his interpretation of the “Satisfaction Guaranteed” sign, which was
unsupported “by law or reason.” 961 A.2d at 1076. The Board agreed with that
conclusion and with the conclusion that Pearson’s interpretation of the “Same Day
Service” sign “frankly defie[d] logic.” Id. at 1077. Simply put, by pursuing
18
theories of liability with no logical limit, attempting to justify those theories by
misquoting and misrepresenting pertinent cases and laws, and using those theories
to escalate a minor disagreement into litigation supposedly requiring 1,200 hours
of his own legal research, Pearson violated his duty under Rule 3.1 to conduct a
continuing objective inquiry into the merits of his positions. No reasonable
attorney could have concluded that Pearson’s liability and damages claims had
“even a faint hope of success on the legal merits.” Spikes, 881 A.2d at 1125
(internal quotation marks omitted).
B. Rule 8.4(d)
Rule 8.4(d) states that “[i]t is professional misconduct for a lawyer to . . .
[e]ngage in conduct that seriously interferes with the administration of justice.” A
violation requires improper conduct that “bear[s] directly upon the judicial process
. . . with respect to an identifiable case or tribunal” and “taint[s] the judicial
process in more than a de minimis way.” See In re Hopkins, 677 A.2d 55, 59–61
(D.C. 1996). “[T]he purpose of Rule 8.4 is not to safeguard against harm to the
client from the attorney’s incompetence or failure to advocate. Rather it is to
address the harm that results to the ‘administration of justice’ more generally.”
19
Yelverton, 105 A.3d at 427. Rule 8.4(d) seeks to protect both litigants and the
courts from unnecessary “legal entanglement.” Id.
Pearson v. Chung provided a textbook example of unnecessary legal
entanglement. Judge Bartnoff credited the Chungs’ position that they never even
lost Pearson’s pants, stating that
The Court found Soo Chung to be very credible, and her
explanation that she recognized the disputed pants as
belonging to Mr. Pearson because of the unusual belt
inserts was much more credible than his speculation that
she took a pair of unclaimed pants from the back of the
store and altered them to match his measurements.
Pearson v Chung, No. 05CA4302B, 2007 WL 6965580 (D.C. Super. Ct. June 25,
2007). But even if the Chungs had lost the pants, they were still subjected to years
of litigation-related stress, including excessive and invasive discovery and tens of
thousands of dollars in attorney’s fees,11 due to Pearson’s aggressive pursuit of an
issue that the Board correctly noted “more properly belonged in Small Claims
court.” Frivolous actions “waste the time and resources of th[e] court, delay the
11
Though the costs were eventually paid by others, as the publicity the case
garnered led to multiple efforts to raise funds on their behalf, the Chungs’ motion
for Rule 11 sanctions included a request for almost $100,000 in attorney’s fees.
The fact that others volunteered to share that burden does not mitigate the conduct
of Pearson that required those expenditures.
20
hearing of cases with merit and cause . . . unwarranted delay and added expense.”
Spikes, 881 A.2d at 1127.
The Board found that Pearson’s Rule 3.1 violations unduly burdened the
judicial system. But even setting aside those violations, the Board also found that
the court system was burdened by his “repetitive” motions and discovery practice,
some of which was explicitly barred by a previous court order, other parts of which
involved “unfounded allegations against the pre-trial judge.”12 We agree with the
Board’s finding that Pearson’s “litigation tactics went beyond aggressiveness and
crossed the boundary into abusiveness.” These tactics, and this litigation,
consumed far more resources than the issues merited for at least three parties: the
defendants, the Superior Court, and this court. Here, as in Yelverton, we conclude
12
Pearson claims that he did not have sufficient notice of Disciplinary
Counsel’s intent to fault him for his discovery practice, which he argues invalidates
the finding of a Rule 8.4(d) violation. This argument fails for three reasons. First,
it is clear that respondent violated Rule 8.4(d) even if we omit consideration of his
discovery tactics. Second, the evidence of his discovery abuses did not constitute a
new, free-standing claim, but instead merely provided additional support for the
Rule 8.4(d) charge, of which Pearson had ample notice. He is entitled to notice of
the charges against him, not to a complete list of every piece of evidence
Disciplinary Counsel may rely upon. Third, the Specification of Charges refers to
“extensive discovery and motions practice.” This rather vague reference was
amplified when the Hearing Committee Chair reminded Pearson that he should “be
sure to give us your side of the story” regarding the need for so many discovery
motions. During the hearing, Pearson himself introduced into evidence his
multiple motions to compel discovery. He also had the opportunity to brief all
charges after the hearing. This was sufficient notice and opportunity to be heard.
21
that “respondent’s numerous meritless, repetitive, and at times vexatious motions
and other filings, considered in their totality, caused more than de minimis harm to
the judicial process and violated Rule 8.4(d).” 105 A.3d at 428.13
IV. Sanction
In determining the appropriate sanction, we consider factors such as “(1) the
seriousness of the conduct, (2) prejudice to the client, (3) whether the conduct
involved dishonesty, (4) violation of other disciplinary 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 1032,
13
Pearson makes an additional argument, claiming that the long delay
between the Pearson v. Chung litigation and the initiation of these disciplinary
proceedings requires dismissal of all charges. It clearly is not an ideal practice to
delay prosecutions for seven years, but even “troubling” and “inexcusable” delays,
without more, will not “rise[] to a due process violation that warrants dismissal.”
Saint-Louis, 147 A.3d at 1148–49. Our case law states that undue delays in
prosecution of disciplinary charges must be “coupled with actual prejudice” in
order to justify dismissal. Id. at 1147 (quoting In re Williams, 513 A.2d 793, 796
(D.C. 1986) (per curiam)). Because Pearson v. Chung is a matter of public record,
as are the legal arguments that Pearson made, the motions that he submitted, and
the damages that he demanded, we are unable to discern any impairment of
Pearson’s defense that resulted from the delay. The delay, while troubling, does
not rise to the level of a due process violation.
Pearson’s wide-ranging brief presents numerous additional complaints. We
have considered and rejected them, but see no need to extend the length of this
opinion by addressing each individually.
22
1053 (D.C. 2013). The Board recommended a suspension of ninety days. Its
primary reasons for departing from the Hearing Committee’s recommendation of a
thirty-day suspension with a stay were that (1) Pearson’s misconduct was quite
serious, as his mischaracterization of procedural facts and the facts of cases he
cited compounded the problematic nature of his frivolous legal theories; (2)
“Respondent’s frivolous claims had [a major impact] on the resources of the
Superior Court and on the Defendants”; and (3) rather than express remorse or
acknowledge his misconduct, Pearson litigated this disciplinary case in the same
manner that he did Pearson v. Chung, making outlandish claims and engaging in
“frivolous motions practice.” The Board stated that “Respondent’s obstinacy is a
significant aggravating factor” and, quoting Yelverton, 105 A.3d at 431, faulted
him for “using the same playbook that brought him into the disciplinary
proceedings.” Reasoning that “[p]ast cases involving violations of Rules 3.1 and
8.4(d) have resulted in a range of sanctions, from a thirty-day suspension to an
eighteen-month suspension,” the Board ultimately settled on a ninety-day
suspension.
We accept the Board’s recommendation that a ninety-day suspension, with
no stay, is “necessary to protect the public, to promote confidence in the Bar, and
to deter Respondent from similar misconduct.” Instead of accepting responsibility
23
for his actions — or even contemplating any possibility that he may have engaged
in professional misconduct — Pearson has chosen at every step of the disciplinary
process, including as recently as his oral argument in this appeal, to levy
accusations against Disciplinary Counsel, the Board, the Hearing Committee, and
this court. The ongoing nature of Pearson’s conduct indicates that a ninety-day
suspension is appropriate.
As we did in Yelverton, we find that respondent’s lack of disciplinary history
is a mitigating factor.14 However, other mitigating factors cited there do not apply
here. For example, unlike in Yelverton, we cannot say “that his actions were
motivated by concern for his client.” 105 A.3d at 428.
14
Pearson complains that the Board referred to his pro se divorce litigation
in Virginia when discussing his lack of disciplinary history. The Board found it
“relevant” that the court ordered respondent to pay $12,000 of his former wife’s
attorney’s fees and quoted admonitions from the Virginia trial judge that Pearson
was “responsible for excessive[ly] driving up everything that went on here” and
pursued disproportionate and “unnecessary litigation.” Pearson has not persuaded
us that it was wrong for the Board to consider this matter. In any event, excluding
this evidence would not impact the outcome of this case. In light of the Board’s
ultimate finding that Pearson’s lack of disciplinary history was still a mitigating
factor, which we adopt, the reference has no bearing on our larger conclusion that
the Board’s sanction recommendation is within the “wide range of acceptable
outcomes” that we should adopt. Cleaver-Bascombe, 986 A.2d at 1194.
24
We also share the Board’s perspective on the overall seriousness of
respondent’s actions. We have discussed, at length, Pearson’s tendency to
selectively quote, or even misquote, cases, court orders, and laws. See, e.g., supra
notes 4, 9–10. We also note that, as in Yelverton, “[t]he sheer volume of
respondent’s frivolous filings” is an aggravating factor, see 105 A.3d at 429,
because it is reflective of the larger issue of his lack of remorse and the extent of
the Rule 8.4(d) violation. “It is . . . significant that respondent fails to
acknowledge the wrongfulness of his conduct in persisting in the submission of
meritless and unprofessional filings, both in the trial court and on appeal to this
court . . . and throughout the disciplinary proceedings.” Id.
In violating multiple rules and making unfounded allegations against various
members of the judiciary and participants in the disciplinary process, respondent
took actions comparable to those in Yelverton and Spikes. However, there are also
some unique aggravating factors and fewer mitigating factors than there were in
those cases. Spikes received a thirty-day suspension. 881 A.2d at 1119. In
Yelverton, we imposed a thirty-day suspension but added a fitness requirement,
effectively enhancing that sanction. 105 A.3d at 417. Because the Board’s
recommendation would not “foster a tendency toward inconsistent dispositions for
25
comparable conduct” and is not “otherwise . . . unwarranted,” D.C. Bar Rule XI, §
9(h)(1), we adopt it and impose a ninety-day suspension.
V. Conclusion
There is substantial evidence in the record to support the Board’s factual
conclusions. Even if respondent’s “actions were heartfelt . . . that does not mean . .
. that they were innocuous.” Yelverton, 105 A.3d at 427. For the reasons stated
above, we conclude that respondent violated District of Columbia Rules of
Professional Conduct 3.1 and 8.4(d) and impose the sanction of a ninety-day
suspension without a stay. Accordingly, it is ORDERED that Roy L. Pearson, Jr.,
is suspended from the practice of law in the District of Columbia for the period of
ninety days. See D.C. Bar R. XI, § 14(f) (“an order of . . . suspension shall be
effective thirty days after entry”). For purposes of reinstatement, the period of
respondent’s suspension shall not begin to run until such time as he files an
affidavit in compliance with D.C. Bar R. XI, § 14(g). See D.C. Bar R. XI, § 16(c).
So ordered.