In re Stephen T.Yelverton , 105 A.3d 413 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-BG-844
IN RE STEPHEN T. YELVERTON, Respondent.
A Suspended Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 264044)
(Argued March 11, 2014 Decided December 24, 2014)
Stephen T. Yelverton, pro se.
Hamilton P. Fox, III, Assistant Bar Counsel, with whom Wallace E. Shipp,
Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on
the brief, for the Office of Bar Counsel.
Before FISHER and BECKWITH, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge: This case requires us to consider whether and how to
sanction an attorney for a pattern of repetitive frivolous filings. Before us is a
recommendation from the Board on Professional Responsibility (“Board”) that we
find that respondent Stephen T. Yelverton violated Rules of Professional Conduct
1.1 (a), 1.1 (b), 3.1, and 8.4 (d) in his representation of a witness in a criminal trial.
The Board recommends a ninety-day suspension and imposition of a fitness
requirement as a condition of reinstatement. We conclude that respondent‟s
actions did not violate Rules 1.1 (a) or (b), which require professional competence
2
in the representation of clients, as there was no harm to the client. However, we
agree with the Board‟s determination that respondent violated Rules 3.1 and 8.4
(d), which forbid attorneys from making submissions to the court that are not well-
grounded in law and fact, and engaging in conduct that seriously interferes with the
administration of justice. We do not adopt the Board‟s recommendation that
respondent be suspended for ninety days, and instead order a thirty-day suspension.
We also add a requirement, as recommended by the Board, that respondent
demonstrate fitness to practice before he may be reinstated to the practice of law.
I. Facts
A. Respondent’s Actions Leading to Bar Counsel’s Investigation
Respondent, a member of the bar of this court since 1979, represented the
complaining witness in a criminal assault case.1 Following a bench trial held in
August 2009, the judge credited the defendant over the complaining witness, and
acquitted the defendant of the assault. Because the judge did not credit the
complainant‟s testimony, and because respondent believed that defense counsel
Kirk Callan Smith had told the judge that respondent‟s client was “a liar,”
1
During trial, defense counsel subpoenaed certain of the complaining
witness‟s financial records. Respondent, who represented the witness, moved to
quash the subpoena and the court ultimately denied enforcement of the subpoena.
3
respondent became concerned that his client could face prosecution for perjury on
the basis of his testimony in the criminal trial. These concerns led respondent to
take the unusual step of seeking a mistrial and a new trial in the assault case, which
the court denied on September 16, 2009. In its denial of the motion, the court
explained that the defendant‟s constitutional right to be free from double jeopardy,
once she was acquitted, barred a retrial.
Undaunted, respondent initiated a number of motions during the next four
months. On September 23, respondent first moved to vacate the order denying the
mistrial motion and to impose sanctions on defense counsel for, among other
things, violating the Rules of Professional Conduct. Two days later, the trial court
denied respondent‟s motions, calling them “frivolous.”2 Respondent then moved,
on October 5, to vacate that denial, again asking the court to sanction defense
counsel and to order him to “cease and desist from using [c]ourt processes to
harass [the complaining witness].” That same day, respondent also moved to
recuse the trial judge from the case, accusing him of harboring bias against his
client and engaging in ex parte communications with the prosecutor. On
2
With respect to the motion for sanctions, the trial court‟s order noted that
“the appropriate venue for complaints regarding an attorney‟s conduct and alleged
violations of the D.C. Bar Rules of Professional Conduct is to refer the matter to
Bar Counsel.”
4
November 2, respondent filed another motion to recuse, this time accusing the
judge of ex parte communications with defense counsel. Defense counsel, for his
part, also moved to sanction respondent and his client for abusive and unethical
conduct. Although each new motion in this flurry was in some respect different
from the last, each of respondent‟s submissions also included lengthy passages
copied verbatim from previous motions, and frequently included the same
affidavits. Whenever defense counsel opposed respondent‟s motions or sought
additional time to respond to them, respondent moved both to strike those filings
and to reply to them. On March 15, 2010, the trial court issued an order denying
all of respondent‟s motions, characterizing the motions to recuse as “wholly
without merit,” and the rest of his motions as lacking in legal or factual support.
Although the trial court characterized both parties‟ submissions “in the kindest
phrasing, [as] lengthy, repetitive, and rather casually styled,” the order concluded
that “[n]o relief in the form of sanctions for either party need, or will, be addressed
by the court.”
Respondent then timely appealed the trial court‟s denial of his multiple
motions to this court. The defendant moved to dismiss the appeal and requested
sanctions against respondent. This court dismissed the appeal, citing cases in
support of the well-established proposition that the victim of a crime lacks standing
5
to appeal in criminal proceedings, and denied the motion for sanctions against
respondent. Respondent‟s subsequent petitions for rehearing and rehearing en
banc of the dismissal of his initial appeal were denied. Many filings later, we
issued the following order sua sponte:
[T]he conduct of counsel for both appellant . . . and
cross-appellant . . . raise serious concerns as to the
propriety of actions taken and judgment exercised by
both and the matter is hereby referred to Bar Counsel for
investigation in that regard.
B. Bar Counsel’s Investigation and Hearing Committee Proceedings
Acting on the court‟s referral, Bar Counsel investigated and ultimately
charged respondent with violations of four Rules of Professional Conduct: Rule
1.1 (a) and (b) (competence), Rule 3.1 (meritorious claims and contentions), and
Rule 8.4 (d) (misconduct).
In his response and supplemental response to Bar Counsel‟s Specification of
Charges, respondent denied all charges against him. He also argued that Assistant
Bar Counsel assigned to his case, Hamilton P. Fox III, should be disqualified
because he had brought an unrelated civil suit against the District of Columbia, and
that an independent counsel should be appointed to investigate ethics charges
6
against defense counsel Smith. Respondent asked the Board to investigate Bar
Counsel‟s actions and to dismiss the charges against him.3 Respondent also sought
to remove the bar disciplinary proceedings to federal district court claiming that his
constitutional rights were imperiled. See Yelverton v. Fox, 997 F. Supp. 2d 1, 3 n.2
(D.D.C. 2013). When the removal request was dismissed for lack of jurisdiction,
respondent appealed. The appeal was rejected. Id.; In re Yelverton, 2012 U.S.
App. LEXIS 1715 (D.C. Cir. Jan. 30, 2012), cert. denied, 133 S. Ct. 332 (2012).
Throughout, respondent continued to defend his actions in the Superior Court
seeking a mistrial in the criminal assault case.
On August 24, 2012, following a hearing, the Ad Hoc Hearing Committee
recommended dismissal of the charges, concluding that respondent had
mistakenly—but sincerely—believed that his post-trial motions on his client‟s
behalf would be effective to protect the client from a perjury charge. One
committee member dissented, saying that he would have found violations of all
four rules and recommended a thirty-day suspension and a fitness requirement.
3
Respondent filed three motions with the Board: (1) a demand that the
Specification of Charges be withdrawn and for an investigation of Bar Counsel, (2)
a request for extraordinary relief to prohibit Bar Counsel from proceeding against
him, and (3) an “extraordinary request” for dismissal with prejudice based upon
newly discovered allegations of misconduct by the Office of Bar Counsel. All
were denied by the Board.
7
The Hearing Committee majority thought that it was a decisive consideration that
respondent‟s errors did not prejudice his client. It also considered that
respondent‟s many filings, though annoying, were unlikely to have seriously
overburdened judges, were not filed with an intent to harass any party or to cause
delay, and that the trial judge opted not to sanction respondent in the criminal
case.4 Bar Counsel and respondent both filed exceptions to the Hearing Committee
Report.
C. Report and Recommendation of the Board on Professional
Responsibility
A hearing was held before the Board on November 29, 2012. Respondent‟s
motions after argument led the Board to issue an order on February 5, 2013,
4
According to the Hearing Committee majority:
[W]hat we have is a lawyer who represented his client
with vigor and dedication in a manner that was doomed
from the outset. The question presented, however, is
whether a degree of ineptitude alone, absent any other
inappropriate actions and no evidence of actual harm to
his client or to the judicial system, warrants a permanent
blot on a lawyer‟s career after that lawyer has been in
practice for more than 30 years without having exhibited
ethical lapses.
The dissenting member, however, characterized respondent as an “unending source
of meritless and vexatious litigation.”
8
prohibiting further filings. On July 30, 2013, the Board issued a Report and
Recommendation to this court. The Board adopted the Hearing Committee‟s
factual findings but rejected its legal conclusions, concluding instead that
respondent violated all four rules as charged by Bar Counsel. It recommended a
ninety-day suspension (as opposed to the dissenting Hearing Committee member‟s
recommended thirty-day suspension) and imposition of a fitness requirement as a
condition to reinstatement following suspension.
Respondent immediately filed exceptions to the Board‟s report with this
court; Bar Counsel took no exception. Three weeks after the Board submitted its
report, respondent filed suit in the United States District Court for the District of
Columbia, naming Assistant Bar Counsel, the Board‟s Executive Attorney, and the
Clerk of this court as defendants, seeking a preliminary injunction to stay the
Board‟s Report and to enjoin this court from suspending him. The federal court
denied the preliminary injunction. See Yelverton, 997 F. Supp. 2d at 2. On
September 12, 2013, respondent was suspended from practicing law in the District
of Columbia pending the court‟s final action on the Board‟s recommendation.5
5
When the Board recommends discipline in the form of disbarment,
suspension requiring proof of fitness as a condition of reinstatement, or any
suspension of one year or more, this court must enter an order suspending the
attorney from the practice of law in the District of Columbia pending final action
(continued . . .)
9
Pursuant to the court‟s briefing schedule, respondent and Bar Counsel filed
their briefs with the court in October 2013. In the months that followed,
respondent filed six motions with this court, some of which were largely verbatim
copies of previously submitted filings. He moved to void his interim suspension
as “a legal nullity” on the theory that it was based on “off-the-record” accusations
about his political beliefs and was therefore in violation of his due process rights.
He filed a Demand for Recusal of Bar Counsel Senior Staff Attorney Lawrence
Bloom from involvement in respondent‟s case, on the ground that he and
respondent used to work together. He also filed a motion and supplemental motion
requesting that every judge on this court be recused from this case for bias “based
upon prejudgment.”6 All of these motions were denied by this court‟s order of
(. . . continued)
on the Board‟s recommendation unless the attorney can show cause why this court
should not order temporary suspension. See D.C. Bar R. XI, § 9 (g). Respondent
filed a response to the order to show cause and requested en banc review by the
court on the ground that any sanction against him based on actions taken in defense
of a client in court is absolutely barred by the First Amendment. This argument is
repeated in respondent‟s brief. See note 8 infra.
6
Respondent‟s motion to disqualify the judges of this court argued that the
disciplinary proceedings violate his due process rights because the court (1) is
acting both as prosecutor and judge, and (2) refuses to exempt him from
disciplinary sanction and is instead retaliating against him for “publicly exposing
fraud and corruption” by the defense attorney and trial judge in the criminal case.
On the first point, respondent asserted that Assistant Bar Counsel Fox had
represented to the federal court in respondent‟s action seeking federal court
intervention in this disciplinary proceeding that the D.C. Court of Appeals (not
(continued . . .)
10
December 13, 2013. The court also sua sponte ordered respondent to stop
submitting motions and pleadings in this case without leave of the court.
Subsequent to that order, respondent has filed additional submissions (most
seeking leave) to remand this case to the Hearing Committee, to give notice of his
reservation of constitutional claims for resolution by the U.S. District Court, to
provide citations to supplemental authority, to request that the court take judicial
notice of various proceedings in other courts, and to refer a new matter, an order of
the U.S. District Court, to the Hearing Committee for an initial determination of
the facts he disputes in that order. Respondent‟s motions have been either returned
for failing to comply with the December 13, 2013, order or denied.
(. . . continued)
defense counsel, as respondent alleged) was the true complainant in the
Specification of Charges. What Assistant Bar Counsel had represented, accurately,
is that the court had referred respondent‟s conduct to Bar Counsel for investigation.
It is Bar Counsel, not the court, who presents and prosecutes the Specification of
Charges. See D.C. Bar R. XI, §§ 6 & 8. There are several layers of procedural
requirements and proceedings before a disciplinary matter comes before the court
for ultimate resolution. Id. at §§ 8 & 9. At each stage, Bar Counsel has had the
burden of proof and respondent has had the opportunity to participate in the
proceeding. At this final step of the disciplinary proceeding, before the court, the
Board has presented its findings, conclusions and recommendation in a written
report and respondent has responded in writing and in oral argument.
With respect to the second point, the disciplinary proceedings are based on
respondent‟s conduct evidencing professional incompetence, not his alleged
whistleblowing. As we explain, see note 8 infra, respondent‟s conduct in violation
of ethical rules is not exempted from sanction.
11
II. Standard of Review
When we consider the Board‟s Report and Recommendation, we “must
accept the findings of fact made by the Board unless they are unsupported by
substantial evidence of record, and 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.” D.C. Bar R. XI, § 9
(h)(1); see In re Pye, 57 A.3d 960, 962 (D.C. 2012) (quoting In re Cleaver-
Bascombe, 986 A.2d 1191, 1194 (D.C. 2010)); In re Hewett, 11 A.3d 279, 284-85
(D.C. 2011). However, “[w]hether the Board‟s determinations are characterized as
findings of ultimate fact or conclusions of law, we owe them no deference; our
review is de novo.” In re Cater, 887 A.2d 1, 12 (D.C. 2005). A “finding of
ultimate fact” in this context is a finding that respondent‟s conduct violates a
specific rule of professional conduct, rather than a factual finding about the
underlying conduct that is alleged to constitute the offense. See id. at 12.7
7
The court defers to the Board‟s findings of historical fact and credibility
determinations. See In re Lea, 969 A.2d 881, 889 (D.C. 2009) (citing In re
Micheel, 610 A.2d 231, 234 (D.C. 1992)).
12
III. Rule Violations8
8
Respondent raises two preliminary defenses that we decide succinctly.
Respondent first argues that his “filings are allowed under the Noerr-Pennington
Doctrine, which absolutely bars Sanction in civil matters seeking access to Courts
to vindicate grievances.” See Eastern R.R. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S.
657 (1965). He contends that sanctioning actions taken in civil court on behalf of a
client violates the First and Fifth Amendments, citing Nader v. Democratic Nat’l
Comm., 567 F.3d 692, 696 (D.C. Cir. 2009), and United States v. American Tel. &
Tel. Co., 524 F. Supp. 1336, 1363-64 (D.D.C. 1981). But respondent‟s reliance on
Noerr-Pennington is mistaken. We have said that “baseless litigation is not
immunized by the First Amendment Right to Petition.” In re Ditton, 980 A.2d
1170, 1173 n.3 (D.C. 2009) (quoting McDonald v. Smith, 472 U.S. 479 (1985)
(holding that First Amendment right to petition does not preclude state action for
libel requiring a showing of malice)). Notwithstanding the finding that respondent
acted with his client‟s interest at heart, once respondent was made aware that his
motions were frivolous, their repeated assertion, to the detriment of third parties
and the courts, were no longer in good faith and could be subject to reasonable
sanction in order to enforce well-established standards of professional conduct.
See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 449 (1978) (stating that First
Amendment is not violated by state‟s imposition of discipline “under
circumstances likely to pose dangers that the State has a right to prevent”); cf.
United Mine Workers of Am., Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217,
225 (1967) (holding that state bar rule absolutely prohibiting union-employed
attorneys from representing union members did not withstand First Amendment
scrutiny where there was “not one single instance of abuse, of harm to clients, of
any actual disadvantage to the public or to the profession”).
Respondent further argues that “the imposition of sanctions on [respondent]
for reporting to the trial court the crime of perjury by [the defendant in the criminal
case] is an „Obstruction of Justice‟ by defense Counsel Smith under D.C. Code §§
22-722 (a) (2)(B), (a)(3)(B), and (a)(5) (2012).” This argument first appears in
respondent‟s brief, and was not brought before the Board. Therefore, it is not
properly before us. “We have held consistently that an attorney who fails to
present an issue to the Board waives it and cannot present it for the first time to this
court.” In re Artis, 883 A.2d 85, 97 (D.C. 2005); In re Holdmann, 834 A.2d 887,
889 (D.C. 2003); In re Abrams, 689 A.2d 6, 9 (D.C. 1997); In re Ray, 675 A.2d
(continued . . .)
13
Respondent contends that Bar Counsel has failed to prove that his conduct
violated any of the Rules in the Specification of Charges. We, therefore, turn to
examine each of the Rules at issue and the evidence presented.
A. Rules 1.1 (a) and (b): Competence
Rule 1.1 provides:
(a) A lawyer shall provide competent representation to a
client. Competent representation requires the legal
knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.
(b) A lawyer shall serve a client with skill and care
commensurate with that generally afforded to clients by
other lawyers in similar matters.
Rule 1.1 is broadly worded, and as we have construed it, applies only to
failures that constitute a “serious deficiency” in the attorney‟s representation of a
client. In re Evans, 902 A.2d 56, 69 (D.C. 2006) (incorporating Board‟s statement
(. . . continued)
1381, 1387 n.5 (D.C. 1996) (failing to raise an issue before the Hearing Committee
constitutes waiver of the point); In re James, 452 A.2d 163, 168 (D.C. 1982) (no
mention of the issue “in respondent‟s exceptions to the Board Report and
Recommendation as filed in this court” constitutes waiver). In any event, neither
the Board‟s recommendation nor this court‟s sanction is premised on respondent‟s
allegations concerning the alleged perjury of the defendant in the criminal assault
case.
14
that “[t]o prove a violation [of Rule 1.1], Bar Counsel must not only show that the
attorney failed to apply his or her skills and knowledge, but that this failure
constituted a serious deficiency in the representation”). A serious deficiency “has
generally been found in cases where the attorney makes an error that prejudices or
could have prejudiced a client and the error was caused by a lack of competence.”
Id. at 70.
We have found Rule 1.1 violations worthy of sanction only when they
involve conduct that is truly incompetent, fraudulent, or negligent and that
prejudices or could have prejudiced the client.9 See, e.g., In re Carter, 11 A.3d
1219, 1223 (D.C. 2011) (failure to attend court hearings and to file response to
show-cause order that resulted in summary judgment against client; failure to make
9
In a reciprocal discipline case, we have also concluded that a pattern of
hostile and bizarre filings containing false factual claims violates Rule 1.1. See In
re DeMaio, 893 A.2d 583, 588 (D.C. 2006) (attorney violated Rule 1.1 by filing
motions in Maryland proceedings alleging judge was personally interceding in the
case and communicating with parties ex parte, that judge and court clerk had
removed briefs from the case files, and demanding that judge be removed from
public office). Because District of Columbia Bar Rule XI, § 11 (c) requires the
court, within specified limits, to accept the disciplinary finding of another
disciplinary jurisdiction as “conclusively establish[ed]” and to impose the identical
sanction that the other jurisdiction has already imposed, reciprocal discipline cases
are not as clear a guide to the meaning and application of our Rules of Professional
Conduct as discipline cases that originate in our disciplinary system, in which the
court makes an authoritative determination about whether an attorney‟s conduct
has violated those Rules.
15
submission to agency that might have prevented client from being suspended at
work); In re Boykins, 748 A.2d 413, 413-14 (D.C. 2000) (failure to provide written
fee agreement and breach of duties as counsel to conservator; failure to advise
client about fee to which she was entitled as conservator; failure to perceive
conflict of interest between conservator and estate‟s heirs in attorney‟s joint
representation of both; billing estate without the court‟s required approval; and
“most importantly[,] fail[ure] to comply for nearly one year with the court and its
agents in repaying the estate and improperly receiving fees for legal services”); In
re Sumner, 665 A.2d 986, 989 (D.C. 1995) (where counsel was aware of risk that
appeal would be dismissed, “counsel‟s dropping of the ball in a litigation matter
through unexcused failure to make required filings, caused by his lack of
competence in such matters, unquestionably violate[d] Rule 1.1”).
In the case before us, the Board concluded that respondent‟s actions violated
Rule 1.1 because (1) respondent sought a mistrial when he should have known that
a new trial is impermissible once a defendant has been acquitted, and that his
client, a witness in the case, lacked standing to seek a mistrial in any event; and (2)
respondent‟s many subsequent filings exposed his client to a risk of sanctions from
the Superior Court and this court. With respect to the Board‟s first ground, it goes
without saying that respondent should have known that the motion for a mistrial by
16
a witness, once the defendant had been acquitted, had absolutely no chance of
success.10 See, e.g., United States v. Allen, 755 A.2d 402, 407 (D.C. 2000) (citing
United States v. Ball, 163 U.S. 662, 671 (1896)); see also Davidson v. United
States, 48 A.3d 194, 205 n.17 (D.C. 2012) (noting that “acquittal terminates
jeopardy”). Respondent was not experienced in criminal proceedings and should
have, at a minimum, consulted someone who was knowledgeable before
embarking on his misguided quest for a mistrial. In determining whether
respondent‟s conduct violated Rule 1.1, we take into account the unfortunate fact
that courts receive any number of meritless motions, claims, and arguments from
members of the bar, and that the attorneys who file them are not automatically
charged by Bar Counsel or sanctioned for incompetence under Rule 1.1.
Respondent did not, however, simply file a meritless motion for mistrial. Bar
Counsel‟s investigation, and the resulting charges against respondent, detail
respondent‟s continued filings in the trial court and on appeal in pursuit of that
legally unfounded strategy that led this court to direct Bar Counsel to investigate
10
At the hearing, Bar Counsel‟s expert witness, Francis Carter, testified that
respondent‟s representation of the complaining witness was not competent and fell
“well short of the skill that other lawyers would have afforded their clients,” that
his motion for a mistrial was frivolous, and that there were other steps respondent
could have taken if he was concerned that his client would be prosecuted for
perjury.
17
the conduct of both attorneys in the criminal case.11 The evidence of respondent‟s
incompetence in this case was not of run-of-the-mill sloppiness.
On the other hand, the Hearing Committee found that respondent‟s actions—
though legally misguided—were sincerely undertaken for the purpose of protecting
his client. Cf. In re Sumner, 665 A.2d at 988 (noting that attorney‟s “abandonment
of [client], coupled with his lack of experience in criminal appeals” violated Rule
1.1). Moreover, the client was not, as the Hearing Committee found and the Board
accepted, prejudiced by any of respondent‟s filings.12 Thus, although we agree
with the Board that respondent‟s filings were ill-advised, meritless, and
unprofessional, we do not agree that they constituted a “serious deficiency in the
representation” of his client warranting sanction under Rule 1.1. In re Evans, 902
A.2d at 69. We see no reason to stretch this rule, intended for the benefit of the
11
In deciding whether respondent has violated Rules of Professional
Conduct, we consider the conduct that the Hearing Committee and the Board
assessed, which is restricted to the time before we referred the matter to Bar
Counsel for investigation. Respondent‟s subsequent filings are relevant only to our
determination of sanction, in particular, whether imposition of a fitness
requirement is appropriate. See In re White, 11 A.3d 1226, 1233 (D.C. 2011)
(taking into account respondent‟s “attitude” and “erratic behavior” during
disciplinary proceedings).
12
The Board also found that although respondent charged the client $3,000
for his legal services, respondent “devoted approximately $20,000 of his time to
his representation.”
18
client, to sanction a lawyer‟s actions taken for the purpose of protecting the client
that caused no actual harm and were unlikely to cause harm to the client.13 As we
now discuss, respondent‟s conduct—and the harm it caused—is directly addressed
by other rules.
B. Rule 3.1: Non-Meritorious Claims and Contentions
Frivolous, repetitive, or vexatious filings violate Rule 3.1, which 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.14
13
The only harm to the client we can envision might have been possible as a
result of the filings in this case would have been the imposition of a sanction—
most likely attorney‟s fees for the unnecessary work required of defense counsel as
a result of respondent‟s filings. Because the filings were obviously the product of
the attorney‟s faulty legal knowledge and research, any such sanction likely would
be directed to the lawyer rather than the client. As a matter of fact, neither the trial
court nor this court imposed any sanction when defense counsel asked for them.
Depending on the type of subpar lawyer performance at issue, a client‟s rights
could be forfeited or compromised, or liability established, causing real harm to the
client. But that was not the case here.
14
Rule 3.1 also provides that “[a] lawyer for the defendant in a criminal
proceeding, or for the respondent in a proceeding that could result in involuntary
(continued . . .)
19
The language of Rule 3.1 establishes that a lawyer has a broader obligation
toward the system as a whole, unlike Rule 1.1‟s focus on the client. In original
discipline cases we have found that meritless filings and frivolous claims can
violate Rule 3.1. See, e.g., In re Spikes, 881 A.2d 1118, 1120 (D.C. 2005)
(attorney‟s filing of defamation claim based on privileged complaint with Bar
Counsel and other privileged documents violated Rules 3.1 and 8.4 (d)); In re
Pelkey, 962 A.2d 268, 280 (D.C. 2008) (attorney‟s attempt to seek court‟s
assistance to evade an arbitration agreement he had signed and misrepresentation
of the trial court‟s ruling against him on appeal violated Rules 3.1 and 8.4 (d)).15
(. . . continued)
institutionalization, shall, if the client elects to go to trial or to a contested fact-
finding hearing, nevertheless so defend the proceeding as to require that the
government carry its burden of proof.” D.C. Ethics Opinion No. 320 interprets this
provision as requiring criminal defense attorneys to represent their clients
vigorously regardless of what they know or believe about their guilt, and states that
any argument for which counsel has a good faith basis—even if indirectly
appealing to the jury‟s power of nullification—should not be deemed a violation of
the Rules of Professional Conduct. Respondent relies on this ethical opinion to
argue that his vigorous efforts on behalf of his client were necessary under Rule
3.1 and shield his actions from ethical sanction. However, respondent was
representing the complaining witness, rather than the defendant, in a criminal
proceeding, and his client was never threatened with prosecution for perjury as a
result of his testimony in the criminal proceeding.
15
We have also imposed reciprocal discipline against attorneys whose
meritless filings were found to have violated rules similar or identical to Rule 3.1.
See In re Sibley, 990 A.2d 483, 487 & 496 (D.C. 2010) (imposing three-year
(continued . . .)
20
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 1116 and our Rule 38.17
(. . . continued)
suspension and fitness requirement as reciprocal discipline to Florida‟s finding that
lawyer made non-meritorious claims where he filed over three dozen frivolous
lawsuits or appeals, twelve of which were filed against judges assigned to hear his
cases); In re Ditton, 980 A.2d at 1173 (imposing reciprocal discipline on basis of
Virginia court‟s conclusion that attorney‟s persistence in filing unfounded and
delusional claims was an abuse of the court system); In re DeMaio, 893 A.2d at
585 (suspending attorney who violated Rule 3.1 when he filed unfounded motions
alleging, among other things, that clerk of the court and chief judge were
conspiring against his client and removing briefs from the case files, and
requesting that chief judge be removed from the court); In re Canatella, 769 A.2d
142 (D.C. 2001) (imposing an eighteen-month suspension against an attorney who
had repeatedly filed unfounded lawsuits in willful violation of California‟s
counterpart to Rule 3.1).
16
Superior Court Civil Rule 11 (b) provides that “[b]y presenting to the
court . . . a pleading, written motion, or other filing,” attorneys (and unrepresented
parties) are deemed to certify, with respect to each filing, that “to the best of the
person‟s knowledge, information and belief, formed after an inquiry reasonable
under the circumstances:”
(1) it is not being presented for any improper purpose,
such as to harass or cause unnecessary delay or needless
increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or for a
nonfrivolous argument for the extension, modification, or
reversal of existing law or establishment of new law;
(3) the allegations and other factual contentions have . . .
or are likely to have . . . evidentiary support.
Super. Ct. Civ. R. 11 (b).
(continued . . .)
21
See In re Spikes, 881 A.2d at 1125. In cases applying Civil Rule 11, we consider
the “clarity or ambiguity of the law,” the “plausibility of the position taken,” and
the “complexity of the issue” to determine whether a claim is truly meritless or
merely weak. Id. (quoting District of Columbia v. Fraternal Order of Police, 691
A.2d 115, 119 (D.C. 1997)). Similarly, in applying our Rule 38, we require
attorneys to make an objective appraisal of the legal merits of a position, id. at
1125 (citing Tupling v. Britton, 411 A.2d 349, 352 (D.C. 1980)), and if it is so
“wholly lacking in substance” that a reasonable attorney would conclude that it is
“not based upon even a faint hope of success on the legal merits,” the action is
frivolous under Rule 38. Id. (quoting Slater v. Biehl, 793 A.2d 1268, 1278 (D.C.
2002) (applying D.C. App. R. 38)).
Here, we have no difficulty concluding that the motion for mistrial
respondent filed in the criminal case was not just weak but completely frivolous.
(. . . continued)
Courts may sanction parties or their attorneys for violations of Rule 11 (b), but
monetary sanctions may not be imposed for violations of Rule 11 (b)(2), which
prohibits frivolous claims. Super. Ct. Civ. R. 11 (c)(2)(A).
17
D.C. Appellate Rule 38 provides for appropriate sanction “when . . . an
attorney practicing before the court takes an appeal or files a petition or motion
that is frivolous.” Permissible sanctions include “dismissal of the appeal;
imposition of single or double costs, expenses, and attorney‟s fees; and disciplinary
proceedings.” D.C. App. R. 38.
22
The law is clear and has been so for a long time. The Double Jeopardy Clause
straightforwardly prohibits re-trying a person for an offense after an acquittal. See
U.S. Const. amend. V (“nor shall any person be subject for the same offence to be
twice put in jeopardy. . .”). Furthermore, respondent‟s client, who was not the
defendant, lacked standing to seek a mistrial. See Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in
the prosecution or nonprosecution of another.”). Respondent identifies no case in
which a court granted a mistrial after the defendant had been acquitted, or in which
the court granted a witness‟s motion for a mistrial under any circumstance. The
issues are not complicated, and any reasonable attorney would have recognized
that there was not even “a faint hope” that respondent‟s motion for a mistrial
would succeed. In re Spikes, 881 A.3d at 1125. Although respondent offers
arguments that his client had standing to seek a mistrial and that jeopardy had not
attached, these arguments are unsupported and do not even acknowledge that the
law is firmly settled against his position.
These were not respondent‟s only frivolous filings. Respondent twice
moved to recuse the trial judge on the basis of an affidavit from his client attesting
to certain alleged facts that, respondent contended, amounted to improper ex parte
communications between the judge and the prosecutor and defense counsel in the
23
criminal assault case. According to the recusal motion, these communications led
the judge to disbelieve respondent‟s client. It is well established that judges may
not communicate ex parte with any party in a case except under the limited
circumstances spelled out in Rule 2.9 (A) of the District of Columbia Code of
Judicial Conduct. Extrajudicial communication about witnesses in a pending case
is especially fraught. See In re M.C., 8 A.3d 1215, 1225-30 (D.C. 2010). But there
was no ethical lapse apparent from respondent‟s motion. For even if the factual
allegations contained in the affidavits submitted with the motions were true, any
reasonable attorney would have recognized that they provide no reason to think the
judge should recuse himself from the case.18
18
Superior Court Civil Rule 63-I, made applicable to criminal trials by
Superior Court Criminal Rule 57, provides that a judge must grant a timely motion
to recuse that is duly supported by a “sufficient affidavit.” The affidavits
respondent filed were not sufficient, however, because they did not provide legal
support for the recusal motion. The facts alleged in the affidavits on “information
and belief” are that after the bench trial that resulted in acquittal, (1) defense
counsel submitted a document to the court calling respondent‟s client “a liar”; (2)
the prosecutor told the judge that he blamed respondent‟s client for the failure to
secure a conviction in the case; (3) the judge refused to sanction defense counsel;
and (4) because defense counsel requested additional time to file a response to one
of respondent‟s filings seeking sanctions against defense counsel, and the docket
did not show that the response was filed, it must have been filed ex parte. Even if
every one of these factual claims were true, not one, or all taken together, provides
reason to think that the judge was personally biased against respondent‟s client or
explains why the judge did not credit his trial testimony or decide not to sanction
defense counsel (or respondent for that matter).
24
Respondent contends that he should not be found to have violated Rule 3.1
because the Hearing Committee and Board made no finding that respondent‟s
filings were not intended to harass any party—they were merely frivolous. It is
only the objective merit of the claims, however, that is considered under Rule 3.1.
See In re Spikes, 881 A.2d at 1125. The attorney‟s intent may be a matter for
consideration of the appropriate sanction, but is not dispositive of the question
whether an attorney‟s actions violate Rule 3.1.
Because respondent‟s motions for mistrial were patently frivolous, because
he filed numerous repetitive and unfounded motions in Superior Court and in this
court, and because he twice asked the trial judge to recuse himself from the case
when he lacked any objective reason to do so, we conclude that there is clear and
convincing evidence that respondent‟s actions violated Rule 3.1.
C. Rule 8.4: Misconduct
Rule 8.4 (d) provides:
It is professional misconduct for a lawyer to . . .
(d) Engage in conduct that seriously interferes with the
administration of justice[.]
25
Conduct violates Rule 8.4 (d) when it is (1) improper, (2) bears directly on
the judicial process with respect to an identifiable case or tribunal, and (3) harms
the judicial process in a more than a de minimis way. See In re Martin, 67 A.3d
1032, 1051 (D.C. 2013) (citing In re Uchendu, 812 A.2d 933, 940 (D.C. 2002)).
We have found a broad range of conduct to violate Rule 8.4 (d), but violations
generally involve misleading the court or misusing or obstructing proceedings in a
specific case or interfering with Bar Counsel‟s efforts to investigate attorney
misconduct. See, e.g., In re Martin, 67 A.3d at 1051 (attorney violated Rule 8.4
(d) when he entered into an agreement that sought to prevent the client from filing
complaints against him with Bar Counsel); In re White, 11 A.3d at 1229 (attorney
violated Rule 8.4 (d) by bringing a client‟s discrimination complaint in federal
court when she had an unwaivable conflict that disrupted, delayed, and tainted the
litigation); In re Carter, 11 A.3d at 1223 (attorney violated Rule 8.4 (d) when he
failed to respond to notices of an investigation from Bar Counsel, failed to comply
with court orders requiring compliance with Bar Counsel‟s investigation, and lied
to the court about why he had missed filing deadlines); In re Edwards, 990 A.2d
501, 524 (D.C. 2010) (attorney violated Rule 8.4 (d) when she failed to respond to
Bar Counsel‟s inquiry); In re Pelkey, 962 A.2d at 280 (attorney violated Rule 8.4
(d), among others, when he sought the court‟s assistance in attempting to evade an
arbitration agreement he had signed and misrepresented the trial court‟s ruling on
26
appeal); In re Evans, 902 A.2d at 68 (attorney violated Rule 8.4 (d) when he
manipulated a probate proceeding to effect a questionable transfer of property to a
client when he had a business interest in closing a mortgage on the property that
was transferred); In re Cleaver-Bascombe, 892 A.2d at 398, 404 (attorney violated
Rule 8.4 (d) when she submitted a false voucher for reimbursement from the court
for her representation of an indigent defendant in a criminal case); In re Spikes,
881 A.2d at 1126-27 (attorney violated 8.4 (d) by filing unfounded defamation
action, based on privileged communications, that required extensive briefing,
impeded ongoing Bar Counsel investigation, and tied up senior attorneys of the
District of Columbia government); In re Goffe, 641 A.2d 458, 461-62 (D.C. 1994)
(attorney disbarred for violating Rule DR 1-102 (A)(5), the precursor to Rule
8.4 (d), when he knowingly submitted fabricated evidence and doctored
agreements to the IRS and the Tax Court).
Applying these precedents, we agree with the Board that respondent‟s
actions violated Rule 8.4 (d). As discussed, the motions for mistrial in the criminal
proceeding were frivolous and contrary to settled precedent. Therefore, they were
contrary to “a specific statute, court rule, or procedure.” In re Spikes, 881 A.2d at
1126 (quoting In re Hopkins, 677 A.2d 55, 61 (D.C. 1996)). The motions to recuse
the judge were similarly unfounded. These motions directly impacted the judicial
27
process with respect to an identifiable case and tribunal, the criminal assault case
in Superior Court in which these motions were filed. See id. They required
responsive action from both the Superior Court and this court, as well as from the
defendant. Even if, as the Hearing Committee and the Board found, respondent
did not lie to the court and his actions were “heartfelt,” i.e., intended to benefit his
client, that does not mean, however, that they were innocuous. Unlike Rule 1.1,
the 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.
Respondent‟s actions did not merely “place[] an unnecessary burden on the
administrative process of the courts,” In re Hallmark, 831 A.2d 366, 375 (D.C.
2003), they tainted the judicial process in more than a de minimis way. See In re
Hopkins, 677 A.2d at 61. This point is a matter of degree. Unlike in Hallmark,
where the attorney filed one unsubstantiated voucher and then abandoned it (to her
financial detriment), respondent repeatedly re-filed essentially the same motions in
the hope of getting a different result, adding to the work of already burdened
courts. Frivolous actions “waste the time and resources of th[e] court, delay the
hearing of cases with merit and cause [opposing parties] unwarranted delay and
added expense.” In re Spikes, 881 A.2d at 1127 (noting that counsel‟s actions
28
impeded investigation and necessitated “extensive briefing of the various positions
over the course of 12 months” and additional pleadings). Respondent‟s filings had
an impact not only on the court, but on the defendant in the criminal case who was
forced to respond to respondent‟s frivolous motions for mistrial for months after
acquittal entitled her, under the Constitution, to be free of further legal
entanglement with respect to the charged assault.
Respondent‟s filings expressly targeted the trial judge, accusing him of bias
and improper ex parte communications and twice asking for his recusal, without
any objectively reasonable basis. The legitimacy of judicial rulings derives in
large measure from the judge‟s actual and perceived impartiality. Litigants are
entitled to an impartial judge and there are rules and procedures in place to
vindicate that right. Rule 2.11 (A) of the Code of Judicial Conduct requires judges
to disqualify themselves from any case in which “the judge‟s impartiality might
reasonably be questioned,” whether or not a motion to disqualify is filed. See
District of Columbia Code of Judicial Conduct Rule 2.11 (A) & cmt. [2] (2012). If
a motion to recuse due to bias gives the objective appearance of being warranted, it
should be granted. See In re M.C., 8 A.3d at 1222 (citing Belton v. United States,
581 A.2d 1205, 1215 (D.C. 1990)). A recusal motion that accuses a judge of bias
29
or improper communications with a party is a potent weapon that must be
exercised prudently.
On this record we conclude 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).
IV. Sanction
Having concluded that respondent‟s conduct violated Rules 3.1 and 8.4 (d),
we turn to the issue of sanction. The Board recommends a ninety-day suspension.
We defer to the Board‟s recommendation unless it would “foster a tendency
toward inconsistent dispositions for comparable conduct or would otherwise be
unwarranted.” D.C. Bar R. XI, § 9 (h)(1).19 “We base our determination of
sanctions upon a number of 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
19
Bar Counsel agrees with the Board‟s recommended suspension. The
Hearing Committee, which found no violation, recommended no sanction; a
dissenting member found violations and recommended a thirty-day suspension.
30
circumstances.” In re Martin, 67 A.3d at 1053 (quoting In re Elgin, 918 A.2d 362,
376 (D.C. 2007)).
Respondent‟s case presents some mitigating factors. The Board and the
Hearing Committee found that respondent‟s conduct did not involve dishonesty
toward the court and that his actions were motivated by concern for his client. The
client was not harmed. Although respondent has been subject to orders from this
and other courts barring him from filing motions without the court‟s permission,
see note 22, infra, he has never been subject to disciplinary action or sanctioned by
this court. On the other hand, respondent‟s unfounded and repetitive filings caused
harm to the court and the defendant, and, significantly, respondent has not yet
acknowledged that his conduct was wrongful. As respondent‟s filings in the
disciplinary proceedings and before this court make clear, the type of conduct for
which respondent was referred for investigation is not isolated but has continued.
Few of our original discipline cases involve conduct comparable to
respondent. We have imposed a thirty-day suspension against attorneys who filed
frivolous actions in violation of Rule 3.1 and Rule 8.4 (d). See In re Spikes, 881
A.2d at 1127-28 (filing a frivolous defamation claim based on privileged complaint
to Bar Counsel indirectly interfered with Bar Counsel‟s ongoing ethical
31
investigation and burdened the court in more than a de minimis way); In re Thyden,
877 A.2d 129, 143-44 (D.C. 2005) (conduct crossed the line of zealous advocacy
and unduly burdened the court, including filing an action after having been fired by
client, for the benefit of others who lacked standing to bring that action). At the
other extreme, we have disbarred an attorney for a course of conduct that included
many other factors not present in this case including criminal and deceitful
conduct, as well as failure to acknowledge the conduct as wrongful. See In re
Pelkey, 962 A.2d at 282; see also In re Shieh, 738 A.2d 814, 815 (D.C. 1999)
(ordering identical discipline upon attorney‟s disbarment in California and New
York because the attorney‟s conduct violated Rule 8.4 (d) and the “sheer volume
of respondent‟s abusive filings and other sanctioned behavior ma[de] synopsis of it
in a few paragraphs impossible”).
The Board recommends a ninety-day suspension on the ground that
respondent‟s conduct is at least as bad as that in In re Thyden and In re Spikes.
However, we imposed thirty-day suspensions in both of those cases, and basic
fairness requires us to point to some significant differences between the conduct at
issue in those cases and respondent‟s in this case to justify imposing a longer
suspension here. The sheer volume of respondent‟s frivolous filings is one such
factor. It is also significant that respondent fails to acknowledge the wrongfulness
32
of his conduct in persisting in the submission of meritless and unprofessional
filings, both in the trial court and on appeal to this court in the criminal assault case
and throughout the disciplinary proceedings, despite clear statements from all the
adjudicatory bodies involved that his filings were frivolous. But the respondent in
Thyden, who received a thirty-day suspension, also did not acknowledge that his
actions violated the Rules of Professional Conduct, even though he had been
personally sanctioned by the court. 877 A.2d at 143-44. As we have remarked,
imposition of a sanction is not “an exact science,” id. at 144 (quoting In re Fair,
780 A.2d 1106, 1115 n.24 (D.C. 2001)), and it is impossible to “match” all factors
in different disciplinary cases. Still, nothing in respondent‟s conduct, which was
undertaken not for personal gain but for the benefit of his client, merits a more
severe sanction than in Thyden and Spikes. We, therefore, conclude that the
Board‟s recommendation that respondent be suspended for ninety days is
unwarranted, and instead, order a suspension of thirty days, which will begin to run
for purposes of reinstatement from the time respondent files the affidavit required
under D.C. Bar Rule XI, § 14.
V. Fitness Requirement
Although we think that a thirty-day suspension is the “commensurate
response” to respondent‟s past ethical misconduct, the purpose of a fitness
33
requirement—proof of rehabilitation as a condition of reinstatement—is different
and forward-looking. In re Cater, 887 A.2d at 24; see D.C. Bar R. XI, § 3 (a)(2).
“[T]he period of suspension that may be justified in a given case of misconduct
may not be enough by itself to protect the public, the courts and the integrity of the
legal profession. The more unlikely it is that the attorney will be rehabilitated by
the end of the predetermined suspension term, the more the need for additional
protection.” In re Cater, 887 A.2d at 23.
A fitness requirement is imposed only when the record “contain[s] clear and
convincing evidence that casts a serious doubt upon the attorney‟s continuing
fitness to practice law.” Id. at 24. Evidence is “clear and convincing” if it is
sufficient to establish “a firm belief or conviction as to the facts sought to be
established.” Id. (quoting In re Dortch, 860 A.2d 346, 358 (D.C. 2004)). This is a
more demanding standard than we use when considering other sanctions
recommended by Bar Counsel. It is far simpler to evaluate an attorney‟s past acts
than to project, from those past acts and the rest of the record, what that attorney
will do in the future. Because this prospective inquiry is inherently speculative, we
put the burden on Bar Counsel, who seeks the sanction, to present evidence that a
fitness requirement should be imposed. If, after reviewing the record and
considering the facts found by the Board and the Hearing Committee, we are
34
unsure about whether an attorney will be able to resume the ethical practice of law
at the end of the period of suspension, then the standard is not met, and a fitness
requirement may not be imposed. For example, some attorney misconduct is
serious but isolated. It deserves sanction even absent any reason to think it will be
repeated. In these cases, however, a fitness requirement is unwarranted. See In re
Guberman, 978 A.2d 200, 212 (D.C. 2009) (finding a fitness requirement less
likely to be appropriate if the misconduct “involved a response to the pressure of
the moment or a situation unlikely to be repeated”).
In deciding whether a fitness requirement should be imposed, we consider
the same factors we use to determine whether to reinstate a disbarred attorney:
(1) the nature and circumstances of the misconduct for
which the attorney was disciplined;
(2) whether the attorney recognizes the seriousness of the
misconduct;
(3) the attorney‟s conduct since discipline was imposed,
including the steps taken to remedy past wrongs and
prevent future ones;
(4) the attorney‟s present character; and
(5) the attorney‟s present qualifications and competence
to practice law
35
In re Cater, 887 A.2d at 21 (citing In re Roundtree, 503 A.2d 1215, 1217 (D.C.
1985)).
Turning to the first factor, respondent is being disciplined for filing meritless
motions for a mistrial, and for repetitive and frivolous motions that continued to
defend the motion on the merits. In addition, respondent filed unfounded
challenges to the impartiality of the trial judge. There is no indication that
respondent recognizes the seriousness of the misconduct or even that he recognizes
it as misconduct at all, the second factor we consider. This necessarily gives us
pause as to respondent‟s likely future performance. Where we focus our attention
in this case is on the third factor, respondent‟s more recent conduct, since the
disciplinary proceedings were initiated.20 We recognize that an attorney has a right
to defend himself and we expect that most lawyers will do so vigorously, to protect
their reputation and license to practice law. But even a claim of innocence does
not relieve an attorney from recognizing the seriousness of the misconduct that led
to disciplinary proceedings. See In re Sabo, 49 A.3d 1219, 1226 (D.C. 2012).
Respondent has not done so. During these bar discipline proceedings respondent
20
The court may consider conduct that was not before the Hearing
Committee and the Board, so long as it is part of the disciplinary proceeding and
proven by clear and convincing evidence. See In re Cater, 887 A.2d at 24-25.
36
has continued to file meritless submissions that attempted to remove the
disciplinary proceedings to federal court (which lacked jurisdiction), sought
injunctions of his interim suspension and the disciplinary proceedings from the
federal court,21 moved to vacate his interim suspension as a “legal nullity,” and
argued that every judge on this court should be recused from his case for bias.
Respondent, in other words, is still using the same playbook that brought him into
the disciplinary proceedings. He has received considerable feedback on his
litigation tactics, from the trial judge, Bar Counsel, the Hearing Committee, the
Board, this court, and the federal court,22 all of it sounding the same basic refrain:
21
Yelverton‟s complaint against Assistant Bar Counsel Fox was dismissed
by the federal court under the doctrine of equitable restraint; the motion for a
preliminary injunction was denied as moot. See Yelverton, 997 F. Supp. 2d at 2;
Younger v. Harris, 401 U.S. 37 (1971) (setting out three-part test to determine
whether federal court should defer to ongoing state court proceeding).
22
See Yelverton v. Senyi de Nagy-Unyom, 2013 U.S. Dist. LEXIS 172010
(D.D.C. Nov. 27, 2013) (finding respondent ineligible for a fee waiver in his
appeal of a ruling from the Bankruptcy Court). The court‟s order includes a
history of respondent‟s recent litigation in federal court, and concludes that the
“number, content, frequency, and disposition” of respondent‟s filings mark him as
an abusive litigator. Id. at *11, *18 (citing In re Powell, 851 F.2d 427, 434 (D.C.
Cir. 1988) (applying those four factors to distinguish vexatious and abusive
litigation from mere litigiousness alone)); see id. at *3-4 (indicating that
respondent had filed motions in that case despite being ordered not to do so
without first seeking leave of the court); id. at *34 (citing 5:09-CV-331-FL
(W.D.N.C.), Yelverton/Webster v. Yelverton Farms, Ltd. (Docs. 60, 120, 127)
(barring respondent from filing more motions or pleadings)).
(continued . . .)
37
do not file baseless submissions, and do not file them over and over again. This
pattern of abusive litigation is more than sufficient to produce a “serious doubt”
that respondent will refrain from engaging in this type of unprofessional,
unproductive, and burdensome conduct in the future. In re Cater, 887 A.2d at 24.
His subsequent conduct during the disciplinary proceedings shows that his many
filings in the criminal assault case, the basis for our findings of professional
misconduct, are not isolated events relegated to the past. There is no reason to
think that they are the result of momentary pressure. Rather they are part of what
appears to be an ingrained pattern of litigation tactics that have plagued this and
other courts, as clearly and convincingly supported by the record in this case and
other cases of public record. We conclude that respondent‟s reinstatement to the
bar of this court, following his thirty-day suspension, is conditioned on respondent
(. . . continued)
This order was brought to the court‟s attention by Bar Counsel during oral
argument and in a December 12, 2013, submission offered as supplemental
authority under D.C. App. R. 28 (k). Respondent has filed his own supplemental
submission, citing Federal Rule of Evidence 201 for the proposition that we may
not take judicial notice of the order without offering him an opportunity to be
heard, because he disputes certain facts recited in the order. This court is in no
position to gauge the facts in the order one way or another. However, we may
refer to a judicial order entered on the public record for the undisputed fact that it
has been entered and for what it provides. Ironically, respondent has himself
attempted to bring to the attention of this court proceedings and orders in unrelated
bankruptcy and family proceedings.
38
showing, by clear and convincing evidence, that he is then fit to resume the
practice of law.
***
For the foregoing reasons, respondent Stephen T. Yelverton is hereby
suspended from the practice of law for a period of thirty days. For purposes of
reinstatement, respondent‟s suspension will be deemed to run from the date
respondent files an affidavit in compliance with D.C. Bar Rule XI, § 14 (g). As a
condition of reinstatement at the conclusion of his suspension, respondent must
first establish his fitness to practice law pursuant to D.C. Bar Rule XI, § 16.
So ordered.