In re Gilbert Baber , 106 A.3d 1072 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-BG-1491
IN RE GILBERT BABER, RESPONDENT.
A Suspended Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 428285)
On Report and Recommendation of the
Board on Professional Responsibility
(BDN-518-09)
(Submitted November 13, 2014 Decided January 15, 2015)
Wallace E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar
Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief for the
Office of Bar Counsel.
Before THOMPSON and MCLEESE, Associate Judges, and NEWMAN, Senior
Judge.
PER CURIAM: The Board on Professional Responsibility has concluded that
respondent Gilbert Baber violated numerous Rules of Professional Conduct during
his representation of a client in a probate matter. The Board recommends that Mr.
Baber be suspended from the practice of law for a period of three years and be
required to prove fitness and to pay restitution as conditions of reinstatement. The
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Office of Bar Counsel contends that Mr. Baber‟s conduct constituted flagrant
dishonesty requiring disbarment. We conclude that Mr. Baber should be disbarred.
I.
The Board‟s report and recommendation rests on the following findings,
which are undisputed in this court.
In April 2007, Darlene Gripper retained Mr. Baber to represent her in the
probate of her mother‟s estate. Ms. Gripper and Mr. Baber signed a retainer letter
providing that Mr. Baber was to charge Ms. Gripper $125 per hour, plus expenses.
On June 14, 2007, Mr. Baber filed a petition for unsupervised probate, naming Ms.
Gripper as the personal representative of her mother‟s estate. On June 19, 2007,
the probate court appointed Ms. Gripper as the personal representative of her
mother‟s estate.
As personal representative, Ms. Gripper was required to give notice of the
opening of the estate to her two brothers, as “interested persons,” within twenty
days of her appointment, i.e., by July 9, 2007. Ms. Gripper‟s brothers did not
receive notice until July 30, 2007, approximately three weeks after the required
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date. Ms. Gripper was also required to publish notice of the opening of the estate
within three months of her appointment and to verify to the court that she had done
so. On September 10, 2007, the probate court sent a notice to Mr. Baber and Ms.
Gripper, reminding them that they needed to file a verification with the court by
September 24, 2007. Despite receiving the reminder, Mr. Baber did not send the
verification form to Ms. Gripper to sign until September 27, 2007. Ms. Gripper
sent the signed forms back to Mr. Baber the next day, but Mr. Baber did not file
them until October 2, 2007.
Additionally, as personal representative, Ms. Gripper was required to
complete an inventory of the estate within three months of her June 19, 2007,
appointment. Mr. Baber did not provide Ms. Gripper with the necessary forms
until October 9, 2007, well after the deadline. He also erroneously advised Ms.
Gripper on how to properly value the estate and refused to correct the valuation
despite Ms. Gripper‟s request that he do so.
The probate court set a hearing for October 30, 2007, to determine whether it
should remove Ms. Gripper as personal representative. At the hearing, Mr. Baber
told the court that Ms. Gripper had missed deadlines because the estate had limited
funds, which was not true. Mr. Baber billed Ms. Gripper for the time he spent
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preparing for and participating in the hearing, even though his neglect had led the
probate court to schedule the hearing in the first place.
In July 2008, Mr. Baber learned that the estate‟s share of proceeds from the
anticipated sale of property in Alabama was estimated at around $196,000. Mr.
Baber subsequently wrote a letter to Ms. Gripper memorializing an oral
modification of the terms of the retainer agreement, to provide that Mr. Baber
would receive five percent of the estate‟s interest in the property if the property
was sold. His explanation for the modification was that it was “too burdensome”
for him to document the time he spent on work relating to the property. Despite
this explanation, the modified agreement stated that, if the property was not sold,
Mr. Baber would be paid hourly for his time. Although the property was not sold,
Mr. Baber nevertheless demanded one-third of five percent of the estimated value
of the property. Ms. Gripper refused to pay and requested an accounting of Mr.
Baber‟s time on the matter so that she could pay him the agreed-upon hourly fees.
Rather than comply with Ms. Gripper‟s request, Mr. Baber sent a notice to
Ms. Gripper informing her that he was withdrawing from the representation. In the
notice, Mr. Baber stated that he was withdrawing because, among other things, (1)
Ms. Gripper had failed to pay her monthly bills in a timely manner; (2) Ms.
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Gripper had failed to cooperate with Mr. Baber and to furnish information and
documentation in a timely manner; and (3) Ms. Gripper had refused to comply
with Mr. Baber‟s demand for one-third of the five-percent fee for the unsold
property. Mr. Baber also accused Ms. Gripper of attempting to “perpetrate a fraud
on the Court,” and he demanded that she pay him $10,360.48, representing one-
third of the five-percent fee, the balance owed for work relating to the unsold
property, and the balance owed for work in April. He threatened to sue Ms.
Gripper for the total amount if she failed to pay $3,265.99 by April 15, 2009. In
response, Ms. Gripper stated that she disagreed with Mr. Baber‟s assertions and
requested a full accounting of services and all documents that Mr. Baber had
received or sent to third parties in connection with the representation.
Mr. Baber subsequently filed a motion in the probate court, seeking to
withdraw from the representation. The motion contained false accusations and
misrepresentations similar to those he made in his earlier letter to Ms. Gripper.
When Ms. Gripper renewed her request for her case file, Mr. Baber refused to turn
it over or account for his time, stating that he did not document every hour he spent
working on the unsold property. Mr. Baber thereafter sent Ms. Gripper a letter
estimating that he spent thirty-three hours working on the property, but Ms.
Gripper refused to pay Mr. Baber because he had only provided an estimate. The
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probate court ultimately granted Mr. Baber‟s motion to withdraw, without
endorsing any of the allegations in the motion.
Mr. Baber‟s actions caused prejudice to Ms. Gripper. One of Ms. Gripper‟s
brothers charged her with malfeasance in the administration of the estate, expressly
relying on the allegations in Mr. Baber‟s motion to withdraw. Furthermore,
because Mr. Baber withdrew, Ms. Gripper had to restart the probate process with a
new attorney and post a $61,000 probate bond.
Mr. Baber also sued Ms. Gripper in Superior Court, accusing her of
fraudulently using his legal services to “conceal and misrepresent [her mother‟s]
assets” and to deny her brothers their lawful share of the estate‟s assets. After Ms.
Gripper filed a pro se answer to the lawsuit, Mr. Baber filed a motion to dismiss
the answer and a motion for judgment against Ms. Gripper, claiming that Ms.
Gripper had fraudulently represented herself as a lawyer. In fact, Ms. Gripper had
not represented herself as a lawyer. The court denied Mr. Baber‟s motions.
Ultimately, Mr. Baber filed a consent motion to dismiss his lawsuit with prejudice,
stating that “[t]he filing of this lawsuit against [Ms. Gripper] should not be
construed as indicating anything negative about her character or honesty.” The
trial court dismissed the lawsuit with prejudice. The court subsequently amended
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the dismissal order, to add language stating that the filing of the lawsuit “should
not be construed as indicating anything negative about [Ms. Gripper‟s] character or
honesty.”
Ms. Gripper filed a disciplinary complaint against Mr. Baber. In response,
Mr. Baber stated that the complaint he had filed in Superior Court accurately stated
his defense to Ms. Gripper‟s allegations.
After an evidentiary hearing, a Hearing Committee of the Board on
Professional Responsibility concluded that Mr. Baber violated numerous Rules of
Professional Conduct. Specifically, the Hearing Committee found that Mr. Baber
had exhibited a lack of knowledge about probate law and practice and failed to
competently represent Ms. Gripper, in violation of Rules 1.1 (a) and (b); failed to
act zealously and diligently and misused information he had obtained in
representing Ms. Gripper to formulate baseless attacks against her, in violation of
Rules 1.3 (a) and (c); failed to keep Ms. Gripper reasonably informed, in violation
of Rules 1.4 (a) and (b); charged unreasonable fees, in violation of Rule 1.5 (a);
betrayed client confidences to Ms. Gripper‟s detriment, in violation of Rules 1.6
(a)(1), (2), and (3); failed to timely return Ms. Gripper‟s file after the
representation ended, in violation of Rule 1.16 (d); knowingly made false
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statements to the court, in violation of Rules 3.3 (a) and 8.4 (c); and engaged in
conduct that seriously interfered with the administration of justice, in violation of
Rule 8.4 (d). The Hearing Committee recommended that Mr. Baber be disbarred,
because his conduct amounted to “flagrant dishonesty.” The Hearing Committee
also recommended that Mr. Baber be required to pay restitution of $8,093.75 plus
interest.
The Board agreed with the Hearing Committee‟s findings of fact and
conclusions that Mr. Baber committed the foregoing violations of the Rules of
Professional Conduct. The Board concluded, however, that Mr. Baber‟s conduct
did not constitute flagrant dishonesty. In reaching that conclusion, the Board
considered that Mr. Baber had no prior disciplinary record, that his
misrepresentations were limited to Ms. Gripper‟s case, and that he withdrew his
civil complaint and did not resist Ms. Gripper‟s request that the Superior Court
clarify its dismissal order to protect her reputation. The Board recommended that
Mr. Baber be suspended from the practice of law in the District of Columbia for
three years and that Mr. Baber be required to demonstrate his fitness to practice
and to make restitution in the amount of $8,093.75, plus interest, before being
permitted to resume the practice of law.
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II.
Mr. Baber has not challenged before this court the report and
recommendation of the Board. Moreover, the record provides ample support for
the Board‟s findings of fact and conclusions that Mr. Baber violated numerous
Rules of Professional Conduct. We therefore accept those findings and
conclusions. See generally, e.g., In re Vohra, 68 A.3d 766, 769 (D.C. 2013)
(accepting Board‟s uncontested findings of facts and conclusions that attorney
violated Rules of Professional Conduct).
Bar Counsel does challenge the Board‟s recommended sanction, arguing that
Mr. Baber instead should be disbarred. On the question of what sanction to
impose, “[o]ur Rules provide that this Court „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.‟” Vohra, 68 A.3d at 771 (quoting D.C. Bar R. XI, § 9 (h)(1)). Thus,
“[a] sanction recommendation from the Board comes to us with a strong
presumption in favor of its imposition.” Id. (internal quotation marks omitted). In
general, “if the Board‟s recommended sanction falls within a wide range of
acceptable outcomes, it will be adopted and imposed.” Id. (internal quotation
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marks omitted). “Ultimately, however, the system of attorney discipline, including
the imposition of sanctions, is the responsibility and duty of this court.” In re
Kanu, 5 A.3d 1, 14 (D.C. 2010) (internal quotation marks omitted). Where this
court takes a significantly different view of the seriousness of an attorney‟s
conduct, the court thus has not hesitated to reach its own conclusion as to the
appropriate sanction. See, e.g., In re Goffe, 641 A.2d 458, 464 (D.C. 1994) (per
curiam).1
In determining what sanction to impose upon an attorney for violations of
the Rules of Professional Conduct, we consider a number of factors, including, “(1)
the nature and seriousness of the misconduct; (2) prior discipline; (3) prejudice to
the client; (4) the [attorney‟s] attitude; (5) circumstances in mitigation and
aggravation; and (6) the mandate to achieve consistency.” Vohra, 68 A.3d at 771.
We also consider “the moral fitness of the attorney” and “the need to protect the
public, the courts, and the legal profession . . . .” In re Howes, 52 A.3d 1, 15 (D.C.
2012) (internal quotation marks omitted). “The purpose of imposing discipline is
to serve the public and professional interests identified and to deter future and
1
Bar Counsel appears to interpret our cases as requiring that any attorney who
engages in “flagrant dishonesty” must be disbarred as a matter of law. We need
not decide whether that interpretation is correct, because we conclude that
disbarment is the appropriate sanction in the particular circumstances of this case.
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similar conduct, rather than to punish the attorney.” Kanu, 5 A.3d at 16 (internal
quotation marks omitted).
Boiled down to essentials, the Board‟s findings are that Mr. Baber failed to
competently represent his client; lied to the court; pressured his client to pay an
excessive fee that she had not agreed to pay; improperly used confidential
information from his client to make knowingly false accusations of fraud against
his client in several pleadings; reiterated those false accusations during the
disciplinary process; and failed to show remorse during the disciplinary process.
Assessing that conduct in light of the pertinent factors, we are convinced that Mr.
Baber should be disbarred.
First, Mr. Baber‟s dishonesty was very serious. We have repeatedly stated
that “honesty is basic to the practice of law, and that lawyers have a greater duty
than ordinary citizens to be scrupulously honest at all times.” In re Guberman, 978
A.2d 200, 209 n.10 (D.C. 2009) (internal quotation marks omitted). See Howes, 52
A.3d at 16 (“[T]here is nothing more antithetical to the practice of law than
dishonesty . . . .”) (internal quotation marks omitted). Although an isolated
incident of dishonesty will not ordinarily by itself warrant disbarment, see, e.g., In
re Silva, 29 A.3d 924, 945-46 (D.C. 2011), this case involves a series of knowingly
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false statements, not only to Ms. Gripper but also orally to the court, in written
pleadings filed in court, and in a written submission to Bar Counsel. Mr. Baber‟s
dishonesty was also protracted, starting in October 2007 and continuing through to
his December 2009 submission to Bar Counsel. The repeated and protracted
nature of Mr. Baber‟s dishonesty weighs significantly in favor of disbarment. See,
e.g., In re Omwenga, 49 A.3d 1235, 1238 (D.C. 2012) (per curiam) (“Particularly
where dishonesty is aggravated and prolonged, disbarment is the appropriate
sanction.”) (internal quotation marks omitted).
Second, Mr. Baber‟s repeated dishonesty is particularly disturbing because it
came at the expense of his client‟s interests and was in large part driven by a desire
for personal gain. When he lied to the court about why Ms. Gripper had not met
certain deadlines, Mr. Baber “basically threw his client under the bus.” Mr. Baber
also made false statements to Ms. Gripper in an effort to obtain an unreasonable
fee that Ms. Gripper had never agreed to pay. Mr. Baber subsequently betrayed
client confidences and made knowingly false accusations that Ms. Gripper had
engaged in fraudulent conduct. Moreover, as we have noted, Mr. Baber‟s
dishonest conduct caused prejudice to Ms. Gripper. These considerations weigh
significantly in favor of disbarment. See, e.g., Omwenga, 49 A.3d at 1239(describing attorney‟s conduct as “egregious” because, among other things, it
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reflected “a blatant disregard for his clients”); Silva, 29 A.3d at 946 (cases in
which attorneys have been disbarred have involved, among other things, “actions
that abused the attorney-client relationship”); Kanu, 5 A.3d at 15 (attorney‟s lies to
clients “compounded her misconduct,” and court “must view the injury to
[attorney‟s] clients as an aggravating factor”); Goffe, 641 A.2d at 465 (treating as
aggravating factor that attorney acted “in order to obtain an economic benefit”).
Third, the record supports the Board‟s determination that Mr. Baber showed
no remorse during the disciplinary process, but instead repeated his false
accusations against Ms. Gripper and continued to falsely blame Ms. Gripper. Such
circumstances also weigh significantly in favor of disbarment. See, e.g., Howes,
52 A.3d at 20 (attorney‟s “failure to accept responsibility [is] an aggravating factor
in our determination of the appropriate sanction”).
Fourth, we do not see countervailing considerations weighing significantly
against disbarment. It is true that Mr. Baber has no prior disciplinary record. The
aggravated nature of Mr. Baber‟s conduct, however, in our view “overwhelm[s]
any absence of prior or subsequent disciplinary actions.” Howes, 52 A.2d at 20. It
is also true that Mr. Baber‟s dishonesty was limited to a single matter and did not
“permeate” Mr. Baber‟s practice of law. See, e.g., Vohra, 68 A.3d at 787 (in
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accepting Board‟s recommendation that attorney be suspended for three years,
court notes that attorney‟s conduct was not as pervasive as conduct involved in
prior case that resulted in disbarment). But given the prolonged and repeated
nature of Mr. Baber‟s conduct, and the other aggravating circumstances, we do not
view it as dispositive that Mr. Baber‟s dishonesty involved one related set of
circumstances. Cf. In re Cleaver-Bascombe, 986 A.2d at 1191, 1199-1201 (D.C.
2010) (per curiam) (disbarring attorney for falsifying single voucher seeking
compensation from court and then lying about voucher). The Board also relied on
Mr. Baber‟s eventual withdrawal of his suit against Ms. Gripper, but we do not
view that circumstance as weighing significantly against disbarment, particularly
given that Mr. Baber has at no point during the disciplinary proceedings showed
remorse or accepted responsibility for his misconduct.
Considering the circumstances of this case as a whole, we conclude that Mr.
Baber demonstrated repeated “indifference to the obligations of honesty in the
judicial system and to the duty of loyalty he owed” to Ms. Gripper. Howes, 52
A.3d at 16. We further conclude that Mr. Baber has shown himself to lack the
“moral rectitude needed to be a member of the legal profession.” Id. Disbarment
of Mr. Baber is therefore warranted, in order “to protect the public, the courts, and
the legal profession . . . .” Id. at 15 (internal quotation marks omitted).
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Finally, we consider the “mandate to achieve consistency.” Vohra, 68 A.3d
at 771. We recognize that “[p]erfect consistency is not achievable in this area,”
Silva, 29 A.3d at 927, because the “imposition of sanctions in bar discipline . . . is
not an exact science but may depend on the facts and circumstances of each
particular proceeding,” Goffe, 641 A.2d at 463. Nevertheless, we conclude that
disbarment rather than suspension is more consistent with our prior cases. We
have disbarred a number of attorneys in circumstances comparable to those of the
present case. See, e.g., Cleaver-Bascombe, 986 A.2d at 1198-1200 (rejecting
Board‟s recommendation of suspension and instead disbarring attorney who
submitted single false voucher for compensation from court and then lied under
oath about voucher; attorney had no prior disciplinary record and did not obtain
payment for voucher; court notes that effort to steal public funds is not
meaningfully different from effort to steal client funds); In re Pelkey, 962 A.2d
268, 280-82 (D.C. 2008) (accepting Board‟s recommendation of disbarment of
attorney who acted dishonestly in business dispute by engaging in conduct that
“amount[ed] to theft,” lied about his conduct, and filed frivolous pleadings;
although attorney had no prior disciplinary record, attorney showed no remorse
and had committed “persistent, protracted, and extremely serious and flagrant acts
of dishonesty” over several years); In re Corizzi, 803 A.2d 438, 441-43 (D.C.
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2002) (accepting Board‟s recommendation of disbarment of attorney who suborned
perjury from clients in two separate matters and lied to Board about conduct; even
if attorney was not acting for personal gain, attorney‟s conduct was “egregious”
and “reprehensible,” attorney showed no remorse, attorney was also found to have
committed other serious ethical violations, and there were no mitigating
circumstances); Goffe, 641 A.2d at 463-68 (rejecting Board‟s recommendation of
suspension and instead disbarring attorney who submitted fabricated documents in
two separate matters, once to benefit fiancee and once to benefit himself; although
attorney had no prior disciplinary record, attorney‟s conduct was blatant and
egregious, conduct extended over several years, attorney testified falsely about
conduct and showed no contrition, and there were no other mitigating
circumstances).
Conversely, the cases in which we have imposed suspension generally
involve circumstances significantly less aggravated than those of the present case.
Most significantly, none of them involve an attorney baselessly and maliciously
attacking the client whose interests the attorney was charged with protecting. See,
e.g., Vohra, 68 A.3d at 771-73 (accepting Board‟s recommendation of three-year
suspension, where attorney failed to properly file immigration documents on behalf
of clients, never informed clients that visa applications had been rejected, forged
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clients‟ signatures on renewed applications, and lied to clients about status of
applications; attorney refunded clients‟ fee and showed some remorse, and
attorney‟s conduct was not pervasive and was not “grounded in malice”); Silva, 29
A.3d at 941-47 (accepting Board‟s recommendation of three-year suspension,
where attorney lied about filing easement on behalf of client, forged signatures on
document, and lied under oath during disciplinary process; attorney‟s conduct was
not prolonged, related to single matter, and did not involve “abuse[ of] the
attorney-client relationship”); In re Daniel, 11 A.3d 291, 299-301 (D.C. 2011)
(imposing three-year suspension instead of one-year suspension recommended by
Board, where attorney hid assets and lied to the Internal Revenue Service to avoid
paying taxes, showed lack of remorse during disciplinary process, lied to Hearing
Committee, and had previously been informally admonished; no indication that
attorney‟s conduct harmed client); In re Kline, 11 A.3d 261, 265-67 (D.C. 2011)
(imposing three-year suspension instead of eighteen-month suspension
recommended by Board, where attorney‟s negligence led to default judgment and
attorney negotiated settlement without informing client of default judgment, forged
client‟s signature on settlement agreement, and used own funds to pay settlement;
attorney‟s conduct was not protracted, attorney demonstrated remorse and
cooperated with disciplinary investigation, and attorney had no prior disciplinary
history); In re Slaughter, 929 A.2d 433, 446-48 (D.C. 2007) (accepting Board‟s
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recommendation of three-year suspension, where attorney fabricated documents
over a period of years to mislead attorney‟s law firm about attorney‟s relationship
with client; although attorney had not expressed remorse or sought to reimburse
firm for loss firm suffered, attorney had no prior disciplinary violations, attorney
did not defraud client for personal gain, no indication that client was prejudiced,
and no indication that attorney lied to court or submitted false documents to court).
We recognize that we ordinarily owe deference to the Board‟s
recommendation as to the proper sanction to be imposed. The Board viewed it as a
close question whether Mr. Baber should be disbarred. We take a significantly
different view of the seriousness of Mr. Baber‟s conduct, however, and we are
convinced that disbarment is the proper sanction. In such circumstances, this court
has not hesitated to reach its own conclusion. See, e.g., Howes, 52 A.3d at 14-25(disbarring attorney, despite Board‟s recommendation that attorney be suspended);
Cleaver-Bascombe, 986 A.2d at 1198-1200 (same); Goffe, 641 A.2d at 464 (same).
* * * * *
For the foregoing reasons, Mr. Baber is disbarred from the practice of law in
the District of Columbia. For purposes of reinstatement, the period of disbarment
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shall run from the date that Mr. Baber files an affidavit in accordance with District
of Columbia Bar Rule XI, § 14 (g). Reinstatement shall be conditioned on Mr.
Baber paying restitution to Ms. Gripper in the amount of $8,093.75, plus interest.
So ordered.