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DISTRICT OF COLUMBIA COURT OF APPEALS BOARD OF PROFESSIONAL RESPONSIBILITY
HEARING COMMITTEE NUMBER ELEVEN
In the Matter of: : :
OSCAR S. MAYERS, : :
Respondent. : Bar Docket No. 443-03 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 407619) :
REPORT AND RECOMMENDATION OF HEARING COMMITTEE NUMBER ELEVEN
I. INTRODUCTION
Bar Counsel has charged Respondent with multiple violations of the Disciplinary
Rules because Respondent submitted or caused to be submitted altered checks to the
District of Columbia Superior Court during the course of a court proceeding involving
child support. Respondent and Bar Counsel have stipulated to many of the facts
underlying the violations alleged by Bar Counsel. Respondent has also admitted that he
committed three of the seven violations alleged by Bar Counsel. As detailed below, the
Committee finds that Bar Counsel proved all of the alleged disciplinary rules violations
by clear and convincing evidence. Absent any mitigating circumstances, these violations
would be grounds for disbarment.
Respondent offered evidence that at the time of the violations he was suffering
from a mental illness -- major depressive disorder -- resulting from the tragic suicide of
his son and contentious divorce and custody proceedings. Respondent maintains that his
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mental illness substantially affected his misconduct, that he is now substantially
rehabilitated and that he therefore satisfies the requirements for mitigation of sanctions as
set forth in In re Kersey, 520 A.2d 321 (D.C. 1987). Bar Counsel disputes that
Respondent’s mental condition rises to the level of mental illness or substantially affected
his misconduct. The Committee finds that while Respondent has proven by clear and
convincing evidence that he suffered from a mental illness or disability at the time of his
misconduct, he has not proven by a preponderance of the evidence that the mental illness
or disability substantially affected his misconduct.
The Committee does find, however, that Respondent has presented evidence of
general mitigation for the severity of the sanction that should be imposed. Considering
all of the evidence and testimony that has been presented, and the mitigating
circumstances, the Hearing Committee recommends that the Respondent be suspended
from the practice of law for a period of eighteen months.
II. PROCEDURAL HISTORY
Respondent was admitted to the District of Columbia Bar on February 6, 1987.
On April 1, 2006, Bar Counsel filed the Specification of Charges in Bar Docket No. 443-
03 in which Bar Counsel alleged that Respondent violated Disciplinary Rule (“Rule”)
3.3(a)(1) (making a false statement of material fact or law to a tribunal), Rule 3.4(a)
(altering, destroying or concealing evidence), Rule 3.4(b) (falsifying evidence), Rule
8.4(a) (knowingly assisting or inducing another to violate the Rules or doing so through
the acts of another), Rule 8.4(b) (committing a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer), Rule 8.4(c) (engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation) and Rule 8.4(d)
(engaging in conduct that seriously interferes with the administration of justice). Bar
Exhibits I (“BXI”) B, Specification of Charges, pp. 2-3.
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On May 11, 2006, Respondent filed his Amended Answer to Specification of
Charges in which he admitted that he violated Rule 8.4(b), Rule 8.4(c), and Rule 8.4(d).
Respondent denied that he violated Rule 3.3(a)(1), Rule 3.4(a), Rule 3.4(b), and Rule
8.4(a) “on the grounds that he was neither representing a client nor acting in his capacity
as an attorney at the time he engaged in the conduct alleged in the Specification of
Charges.” BXI D, Respondent’s Amended Answer to Specification of Charges at 2.
An evidentiary hearing was held in this matter on July 18, 2006, and October 13,
2006. Elizabeth A. Herman, Esq., Senior Assistant Bar Counsel represented, the Office
of Bar Counsel. Respondent was represented by Steven M. Salky, Esq. of Zuckerman
Spaeder. The Hearing Committee consisted of Patricia G. Butler, Esq., Chair, John F.
Barker and Frederick E. Woods, Esq.1 Bar Counsel relied on Exhibits A through D, and
1 through 8, (BXI A - BXI D and BXI 1 - BXI 8) for the violation phase of the hearing,
which were admitted into evidence. Tr. at 16. Respondent did not offer any exhibits into
evidence during the merits phase. He testified on his own behalf. Bar Counsel and
Respondent submitted a Joint Stipulation of Fact. At the conclusion of the merits phase
of the hearing, the Committee made a non-binding determination that Bar Counsel had
proven at least one of the violations in the Specification of Charges. Tr. at 23.
After the merits phase, Respondent offered evidence in support of Kersey
mitigation. Respondent relied on Exhibits 1 through 46, (RX 1 - RX 46), which were
admitted into evidence without objection. Tr. at 56. Respondent called Dr. Thomas Carl
Goldman as a witness and testified on his own behalf. Bar Counsel relied on Exhibits 1
through 18 (BXII 1 - BXII 18), which were admitted into evidence without objection. Tr.
at 191. Bar Counsel called Dr. Glenn Miller.
1 Public Member Carolyn Slenska was recused after the first day of hearing and replaced by Public Member John Barker. The parties agreed that Mr. Barker could read the transcript of the first day of hearing and participate fully in the hearing. Tr. at 34-35.
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III. FINDINGS OF FACT
1. Respondent is a member of the Bar of the District of Columbia, having
been admitted on February 6, 1987, and assigned Bar Number 407619. Stipulation of
Fact 1; BXI A.
2. From 1987 until 2004, Respondent practiced law in the District of
Columbia as an Assistant United States Attorney for the Department of Justice. During
that time, he represented the United States in both criminal and civil actions in federal
and local courts in the District of Columbia. In 2004, Respondent retired from the
Department of Justice. Stipulation of Fact 2.
3. After 2004, Respondent practiced law intermittently as a contract attorney.
Stipulation of Fact 3.
4. On March 16, 2005, Respondent suffered a debilitating stroke and was
hospitalized in acute care at Fairfax Hospital for several weeks, followed by a stay at
Mount Vernon Hospital for rehabilitation. Since being discharged from the hospital,
Respondent has continued to work on his rehabilitation, including physical and
occupational therapy. Respondent has not practiced law since suffering a stroke in
March 2005. Stipulation of Fact 4.
5. From 1978 to 1992, and again from 1994 to 2001, Respondent was
married to Sheila Thurmond. They had four children: Carolene (born 1979), Elizabeth
(born 1983), Robert Joseph (“OJ”) (born 1985), and Gabriel (born 1995). Stipulation of
Fact 5.
6. Throughout their marriages, Respondent and his wife had a strained
relationship. Stipulation of Fact 6.
7. While divorce proceedings were pending in 1999 and 2000, Respondent’s
son OJ resided with Respondent while Respondent’s younger two daughters, Elizabeth
and Gabriel resided with Respondent’s wife. The relationship between Respondent and
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his wife continued to deteriorate, and the couple was involved in multiple legal
proceedings related to custody, visitation and child support during this time. Stipulation
of Fact 7.
8. On July 11, 2000, fifteen year old OJ committed suicide in Respondent’s
bedroom, using a firearm that was formerly owned by Respondent’s father and that
Respondent had kept in his home. Stipulation of Fact 8.
9. Respondent was deeply affected by the death of his son. He experienced
grief, anxiety, and insomnia. He received intermittent therapy for his symptoms from
July 2000 through February 2001. Stipulation of Fact 9.
10. In October 2000, Respondent’s wife, who continued to have custody over
daughters Elizabeth and Gabriel, sought an increase in child support payments from
Respondent. In February 2001, the court increased child support payments to $1,000 bi-
weekly nunc pro tunc to October 23, 2000. Stipulation of Fact 10.
11. The divorce of Respondent and his wife became final in May 2001. In the
divorce decree, Judge Robert Morin, District of Columbia Superior Court, awarded
primary custody of Elizabeth and Gabriel to Mrs. Mayers. Also in the decree, the court:
(1) found that Mr. Mayers’ motives for seeking custody of his children were motivated in
part “by his desire to prevail in his outstanding personal disputes with Ms. Mayers about
their failed relationship as husband and wife and/or to thwart Ms. Mayers’ pursuit of
custody and increased child support;” (2) found that Mr. Mayers “in part contributed to
Ms. Mayers seeking comfort and support from someone else;” and (3) cited the fact that
Mr. Mayers kept in his home the gun that his son used to commit suicide. Stipulation of
Fact 11.
12. In connection with the divorce and custody proceedings, Respondent
underwent a court-ordered psychiatric evaluation by Dr. Floyd B. Galler, M.D., in
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October 2000. In his report, Dr. Galler stated that “Mr. Mayers’ having a gun in his
closet without adequate protection and to imagine his children not knowing about the
existence of the gun in the home is an example of a terrible blind spot.” Stipulation of
Fact 12.
13. The findings of Judge Morin and criticism by Dr, Galler, which
Respondent perceived as blame for his son’s suicide, further exacerbated Respondent’s
grief, anxiety and insomnia. Stipulation of Fact 13.
14. At the time of the divorce, Judge Morin ordered Respondent to pay child
support to his former wife for Gabriel and to pay $500.00 twice monthly to Elizabeth,
who began her studies as a college student in Michigan. Stipulation of Fact 14.
15. By September 2001, Respondent had stopped complying with the court’s
support order and was paying Elizabeth less than the sum ordered by the court. BXI 2(B)
at 63; BXII 14 at 174; BXII 15.
16. In the spring of 2002, Respondent filed a motion with the court for
enforcement of his rights to visitation with Gabriel. Subsequently, Respondent’s former
wife obtained a restraining order against Respondent, alleging that he had sexually
molested Gabriel. Stipulation of Fact 15.
17. In August 2002, child protective service agencies in Virginia and
Maryland determined that the allegations of molestation were unfounded, and in late
2002, Respondent was again awarded visitation with Gabriel. Stipulation of Fact 16.
18. Respondent was engaged between 2001 and 2003 in multiple legal
proceedings in the District of Columbia Superior Court and Court of Appeals relating to
custody and child support issues, including the proceeding in Sheila T. Mayers v. Oscar
S. Mayers, No. DT-830-99. The legal proceedings and the false allegations of abuse
contributed to his continued grief, anxiety and insomnia. Stipulation of Fact 17.
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19. Respondent felt compelled to engage counsel to defend him from possible
criminal charges related to the false accusations of child abuse, as well as for the various
family court proceedings. Stipulation of Fact 18.
20. In July 2002 and in March 2003, Judge Morin ordered Respondent to
respond to complaints by Respondent’s wife and daughter that Respondent had not paid
the required child support to Elizabeth. Stipulation of Fact 19.
21. On July 19, 2002, and on May 9, 2003, Respondent knowingly and
intentionally caused to be presented to the District of Columbia Superior Court and the
parties in that proceeding, as evidence attached to a court filing prepared by
Respondent’s attorneys and Respondent, respectively, copies of altered checks which
Respondent knew to be altered, for the purpose of persuading the court that said checks
had been paid in furtherance of the child support obligation to Elizabeth. Respondent
knew that the checks were altered and that he had not paid the amounts shown on the
altered checks. Stipulation of Fact 20.
22. In Respondent’s July 19, 2002 submission, Respondent, through counsel,
filed a pleading in which he represented to the court that his checks and receipts, between
August, 2001, and February, 2002, showed payments to Elizabeth totaling $4,500.00,
although Respondent knew that his payments to Elizabeth did not reach that total during
that period. BXI 2(D) at 117; BXI 7 at 306.
23. On November 1, 2002, Respondent’s counsel withdrew from the divorce
matter. BXI 2(A) at 5 n.5.
24. In March 2003, Elizabeth submitted copies of her bank statements to the
court and alleged that Respondent had not made the court-ordered payments as he had
alleged in his July 2002 submission. The court ordered Respondent to respond to
Elizabeth’s submissions. BX1 2(A) at 4-5.
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25. In a pro se motion filed by Respondent with the court on May 9, 2003,
Respondent also provided false descriptions of the above referenced altered checks to the
court. Stipulation of Fact 21.
26. In Respondent’s May 9, 2003 submission, Respondent attached altered
checks dated March, 2002, through December, 2002. BXI 2(C).
27. In his response of May 9, 2003, Respondent stated:
The defendant denies that he is delinquent $12,250.00 in child support to Elizabeth and [alleges] that the series of false child support allegations by her are an attempt to exploit this Court’s child support order and harass the defendant with false allegation of non-support.
. . .
The defendant has been in compliance with the Court’s order.
BXI 2(C) at 75.
28. Respondent knew that all of the above statements made in his May 9,
2003 response were false. BXI 7 at 307-308.
29. Respondent paid the arrearages in child support due to his daughter
Elizabeth on December 29, 2003. Stipulation of Fact 22.
30. A criminal investigation of Respondent commenced, and, on January 13,
2005, in the case of United States v. Mayers, 1:04-CR-00567, Respondent entered a plea
of guilty in the United States District Court for the District of Columbia to the
misdemeanor charge of failing to pay child support. Stipulation of Fact 23.
31. In the Factual Basis for Plea, Respondent admitted that he submitted
altered checks to the court on July 19, 2002, and May 9, 2003. BXI 7 at 306-308.
32. On or about October 24, 2005, Respondent was sentenced to six months of
unsupervised probation and ordered to pay a fine. Respondent has completed his
probation successfully and paid the required fine. Stipulation of Fact 24.
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33. Dr. Thomas Goldman examined Mr. Mayers in December, 2003, January,
2004, February, 2004 and May, 2006. He also has had phone conversations with him.
Tr. at 68:15-19.
34. Dr. Goldman’s qualifications were accepted as an expert. Tr. at 62.
35. Dr. Goldman testified that Mr. Mayer suffered from major depressive
disorder. Tr. at 72: 1-6; RX 27 at 10.
36. Dr. Goldman opened that during the time of the misconduct -- July, 2002
to November, 2003 -- Respondent’s “mental and emotional functioning was significantly
impaired by symptoms of Major Depressive Disorder.” RX 31 at 0034.
37. Dr. Goldman testified that individuals with major depressive disorder
“have severely depressed mood, have a marked lack of energy and initiative and
motivation. That is they find it hard very often to get out of bed to do their work, to carry
out their responsibilities. They may feel -- they may lack the ability to concentrate and
pay attention either to their jobs or to their responsibilities at home. . . . They very often
have sleep disturbances. . . . You’re irritable. You’re tired. You’re not thinking as
clearly. Your attention isn’t as good. You’re not as creative. You’re not as flexible.”
Tr. at 64:9-65:16.
38. According to Dr. Goldman, Mr. Mayers had episodes of Major Depressive
Disorder when his mother died in 1985 (Tr. at 72:6-10), when his ex-wife left with the
children and could not be found during the late 1980s (Tr. at 72:19 -73:2), and when his
son committed suicide in 2000 (Tr. at 73:3-5; 74:18-20).
39. Dr. Goldman’s testimony was confusing with respect to whether
Respondent was suffering from major depressive disorder or depression during the time
of his misconduct. He was consistent, however, in his opinion that Respondent suffered
from some level of depression during the period of misconduct.
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40. Dr. Goldman testified that Respondent was “somewhat” depressed at the
time of his misconduct.
Q. What can you say about the fluctuation of the depression during the period of the misconduct. Were there any periods from July 2002 to November 2003 where the depression may had lifted so that his thinking would not have been impaired where he could look at what he had done and say this is wrong. I shouldn’t have done it. Or was that entire time his thinking so impaired that he didn’t think – he thought he should have done it because of the way the judge was acting and the system was treating him and whatever.
A. Well that’s a very good question and I’m afraid I don’t know the answer to that. I think – I don’t know. I think that his capacity to be rational – I think a reasonable assessment would be that when matters came up that had to do with dealing with the specific issues around the checks and Judge Morin that those were periods that is anxiety and his depression were most exacerbated. That is when he had an actual dealing and it’s quite possible that on days when he didn’t have to think about that and could put it out of his mind he might have had days during which he was relatively okay. But I don’t want to be speculating here. I don’t know on how many days in that period he was significantly depressed and how many days – but the impression he gave me, I mean believing his report, which sounds coherent is that he was always, at least, somewhat depressed. When he wasn’t working, when he wasn’t focused on something – on work or something that he could do that took him outside of himself that these thoughts were intrusively coming back to him with the depression, with the anger with the anxiety.
Tr. 144:13-146:1.
41. Dr. Goldman also testified that “I think Mr. Mayers has had some
problems with anger and some -- maybe some chronic problems with pride and self-
esteem. Do they amount -- do they go to the level of a personality disorder? I don’t
know. So I kind of defer on that one.” Tr. at 168: 4-8.
42. Dr. Goldman testified that Respondent’s “irrational thinking, according to
my testimony, occurred -- as far as I could tell -- around those checks. That was the clear
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and only evidence of really irrational thinking and behavior that I know about.” Tr. at
126:16-20.
43. Dr. Goldman testified that the Respondent “knew that it was wrong [to
submit the fraudulent checks and] if you had asked him, isn’t this wrong and aren’t you
breaking the law? I think he would have been able to answer, yes, it was wrong.” Tr. at
129:6-9.
44. Respondent also was examined by Dr. Saunders in January 2004 and Dr.
Galler in October 2000. Neither Dr. Galler nor Dr. Saunders diagnosed Respondent with
Major Depressive Disorder. BXII 16; BXII 17.
45. Dr. Glenn Miller, examined the Respondent on four occasions -- July 26,
July 31, August 2, and August 8, 2006. BXII 2 at 13.
46. Dr. Miller was accepted as an expert in the area of forensic psychiatry.
Tr. at 195:18-196:3.
47. Dr. Miller diagnosed Respondent with “(1) Depressive Disorder, Not
Otherwise Specified and (2) Personality Disorder Not Otherwise Specified.” BXII 2 at
21 during the period of the misconduct.
48. Dr. Miller testified that the symptoms of a depressive disorder “are
sadness, crying, apathy, fatigue, inability to move, inability to sleep, hopelessness,
helplessness.” Tr. at 227: 12 – 14.
49. Dr. Miller characterized Respondent as being “traumatized: hopeless
ashamed.’ BX II at 16. He had “multiple psychiatric symptoms that included such
features as bereavement, depression, trauma, avoidance anger, anxiety, guilt, and
suspiciousness.” BX II at 21.
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Dr. Miller placed depressive disorder “somewhere in the middle” of the
depression spectrum – midway between a mild depression and a major depression. Tr. at
214:19-20.
Q. If there’s a line of mild depression way over here and major depression way over here, where would depressive disorder be?
A. Depressive disorder would be somewhere in the middle. I mean we have – there’s adjustment disorder with depressions. There’s so-called dysthymia. There’s major depressive disorder. There is bereavement, which is, as I say, not a psychiatric diagnosis. He had some depression but not one sufficient enough to make the diagnosis of major depression. I’d like to tell you why I didn’t make the diagnosis of major depression.
Tr. at 214:16 – 215:5.
50. Dr. Miller found that Respondent did not suffer from major depressive
disorder during the period before the misconduct occurred.
A. Okay. You were just about to say why you diagnosed depressive disorder rather than major depression in Mr. Mayers between the time of December 2000 and July of 2002 before the misconduct occurred. Why.
Q. Because he didn’t satisfy the criteria of a major depressive disorder. A major depressive disorder is, as I think Dr. Goldman was pointing out, is a very serious medical problem. It’s one – a typical picture is of a person who can’t or doesn’t get out of bed in the morning. Can’t go to work. Sits in a chair looking around the room. If he’s a man, he doesn’t shave. If it’s a woman, she may – or a man – she may soil herself. He doesn’t eat. He doesn’t move. His friends try to urge him or his family tries to urge him. The family takes a piece of food. He brings it close to his mouth. He put its down. He says nothing good will ever happen to me. There’s nothing I can do to change this stuff and he may entertain thoughts of suicide. It’s a degree, it’s a major degree. Now some of these things in the bereaved part, I think Mr. Mayers had.
Tr. at 217:11 – 218:6
51. Dr. Miller testified that at the time that Respondent submitted the forged
checks “he was not under the influence of a mental illness so substantive at that time that
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he could not control his actions” and he appreciated the wrongfulness of his actions. Tr.
at 229:15-20.
52. Dr. Miller convincingly testified that at the time of Respondent’s
misconduct – July, 2002, when the first altered check was submitted through November
2003, when the court discovered the altered checks – the Respondent showed impaired
judgment but it could not be tied to a mental illness. Tr. at 223:6-224:16.
53. Dr. Miller testified that “[W]ith the depressive disorder I can’t find a
connection. I mean what he did is submit altered checks. He performed this dishonest
act. Now the symptoms of depression are sadness, crying apathy, fatigue, inability to
move, inability to sleep, hopelessness, helplessness. I don’t see how submitting a forged
check is a result of one of these symptoms.” Tr. at 227:9-16.
54. Dr. Miller knew of no causal link between depression and dishonesty. Tr.
232 5-19.
55. Dr. Miller credibly testified that the Respondent’s problems with deep
rooted anxiety and anger were an equal or a greater cause of his misconduct than his
depression. Tr. at 237: 18 – 239:3.
56. Dr. Goldman testified that Respondent’s mood is stable and he is
“peaceful.” See Tr.102:2 – 105:9.
57. Dr. Goldman testified that Respondent appears to have worked through his
anger and was a changed man.
When I interviewed him in May, he seemed like a changed man, that is, that he seemed to be a peaceful man. He was not – the other times I’d interviewed him he was still angry. He had an axe to grind against Judge Morin. He had an axe to grind against Sheila. He was an angry man and it was very important for him to prove that he was right. He was still – the essence that he had to prove that he was right and everyone else was wrong. At this point he said he just – it wasn’t important anymore. What he wanted to have was a peaceful life. He was living at home. He had his
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father helping him out. He was seeing his daughter frequently and he just wanted to be at peace.
Tr. 102:17-103:8
58. Dr. Miller testified that Respondent was no longer “an angry man.” Tr. at
16-19.
59. Respondent testified that at the time that he forged the checks “You know,
at the time this was going on, I was being accused of molesting my seven-year old
daughter. All I wanted was some peace. I just wanted things to be over with so I could
focus on one thing at a time, to clear the allegations that were before me. And I had a
collateral matter that was just taking away from me, defending myself against this
horrendous allegation.” Tr. at 325:19-326:5.
60. Respondent testified that submitting the forged checks was “the stupidest
thing I’ve ever done in my life, and I apologize. It was wrong.” Tr. at 325: 13-15.
IV. CONCLUSIONS OF LAW
A. Disciplinary Rules
Bar Counsel has charged Respondent with violations of Rule 3.3(a)(1) (making a
false statement of material fact or law to a tribunal), Rule 3.4(a) (altering destroying or
concealing evidence), Rule 3.4(b) (falsifying evidence), Rule 8.4(a) (knowingly assisting
or inducing another to violate the Rules or doing so through the acts of another), Rule
8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer), Rule 8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation) and Rule 8.4(d) (engaging in conduct that
seriously interferes with the administration of justice). Respondent admits that he
violated Rule 8.4(b), Rule 8.4(c) and Rule 8.4 (d), but denies that he violated Rule
3.3(a)(1), Rule 3.4(a), Rule 3.4(b) and Rule 8.4(a) as a matter of law. After examining
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the evidence and hearing the testimony before it, the Hearing Committee finds that Bar
Counsel has proven by clear and convincing evidence that Respondent has violated Rule
3.3(a)(1), Rule 3.4(a), Rule 3.4(b), Rule 8.4(a), Rule 8.4(b), Rule 8.4(c) and Rule 8.4(d).
1. Rule 3.3(a)(1) -- Knowingly Making a False Statement of Material Fact or Law to a Tribunal
Rule 3.3(a)(1) prohibits a lawyer from knowingly making a false statement of
material fact or law to a tribunal. The record is clear that the Respondent knowingly
made false statements to the court regarding his payment of child support to Elizabeth.
Those false statements were made (1) in connection with the July, 2002 submission to the
District of Columbia Superior Court when Respondent was represented by counsel and,
(2) in connection with the May, 2003 submission to the District of Columbia Superior
Court when respondent represented himself. BXI 7 at 306-308. In each instance,
Respondent caused to be filed or filed checks he had altered that misrepresented the
amount of child support that he actually had paid to Elizabeth. There is no dispute
between Bar Counsel and Respondent that Respondent undertook these actions.
The remaining issue before the Committee in determining whether Respondent
violated Rule 3.3(a)(1) is whether the rule only applies when the false statements are
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made on behalf of a client. Respondent argues that the rule requires such a reading.
According to Respondent, the Disciplinary Rules draw clear lines between unethical
conduct within the context of the attorney-client relationship or when the lawyer is
representing a third party and unethical conduct where an attorney-client relationship is
not required. Respondent argues that he was not functioning in the role of an advocate
and within the context of an attorney-client relationship at the time that the altered checks
were submitted to the court and, therefore, cannot have violated Rule 3.3(a)(1) as a
matter of law.
Bar Counsel argues that to limit the proscriptions on a lawyer’s ethical obligations
to a tribunal only to the instances in which the lawyer is representing a third party is too
narrow a reading of the disciplinary rule. According to Bar Counsel, the rule itself is not
so limited and there is no case law support for finding any such limitation.
The Hearing Committee does not believe that Rule 3.3(a)(1) is limited in the
manner that Respondent argues. As an attorney, Respondent had a higher duty toward
the tribunal than a lay person and he violated that duty, in the first instance by providing
his lawyers with altered checks and in the second instance by submitting the altered
checks himself. This is not a situation in which the Respondent was involved in activities
that in no way implicated his role or knowledge as an attorney. Moreover, case law
indicates that the District of Columbia Court of Appeals will consider that the attorney’s
misconduct took place during the course of a litigation and place a duty to comply with
disciplinary rules on an attorney who is appearing in a tribunal whether or not that
attorney is representing a third party. See, e.g., In re Goffe, 641 A.2d 458, 466 (D.C.
1994) (“Likewise, in the civil case, in presenting known false evidence in discovery, he
was acting within the familiar arena of attorneys; the fact that he did so as a party rather
than in the role of attorney is irrelevant.”). In Goffe, the attorney presented altered
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documents to the IRS while assisting his fiancée with a tax matter and also altered
documents in a personal real estate matter and related litigation. The Court did not
distinguish between whether or not the respondent was acting in the capacity of an
advocate. The fact that the attorney was not representing a client was irrelevant. The
Court considered that “[a]lthough, the real estate case did not involve the representation
of a client, the filing of documents and production of evidence in litigation lies at the
heart of what attorneys do.” Id. at 465.
It is also persuasive that in many of the cases in which violations of Rule 3.3(a)(1)
were found and there was an attorney-client relationship, the attorney was attempting to
advance the interests of the attorney or hide misconduct by the attorney and was not
advocating for the client when the violation occurred. Thus, even in those cases in which
the attorney was appearing before a tribunal in the role of an advocate, the attorney’s
actions were motivated by self-interest and not the interest of the client. See In re Spikes,
881 A.2d 1112 (D.C. 2005); In re Parshall, 878 A.2d 1253) (D.C. 2005); In re Soininen,
853 A.2d 712 (D.C. 2004); In re Owens, 806 A.2d 1230 (D.C. 2002). The focus of the
Court in finding a violation was the misrepresentation. Here, we find a similar situation
because Respondent was acting in his own self-interest. Respondent altered checks and
either caused them to be or submitted them to the court in order to support a falsity for
his own benefit and to hide his own misconduct, i.e., his refusal to obey a court order and
attempt to show that he had paid more child support than he had paid. He undertook his
actions for his own self-interest and to advance his position with the court.
The Hearing Committee agrees with Bar Counsel, and does not believe that it is
required to limit the application of Rule 3.3(a)(1) to circumstances in which the lawyer is
representing a client. Bar Counsel has proven by clear and convincing evidence that
Respondent has violated Rule 3.3(a)(1).
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2. Rule 3.4(a) -- Altering, Destroying or Concealing Evidence
Rule 3.4(a) prohibits a lawyer from altering evidence “if the lawyer reasonably
should know that the evidence is or may be the subject of discovery or subpoena in any
pending or imminent proceeding.” Respondent has admitted that he altered child support
checks and submitted them to the court in connection with the child support proceeding.
The purpose of the proceeding in which Respondent submitted the altered checks was to
determine if Respondent had made the required child support payments; therefore, the
checks were central to the hearing. The Committee finds that the checks were evidence
that Respondent reasonably should have known, indeed, must have known, would be the
subject of discovery or subpoena in the support proceedings. The checks were the central
evidence in the proceedings and it is inconceivable that they would not be the subject of
discovery or subpoena. Moreover, the Committee finds that the Respondent submitted
the checks for the express purpose of having the court rely on them in determining
whether the Respondent was up to date in his child support payments.
Respondent again argues that he cannot be found to have violated DR 3.4(a) as a
matter of law because he was not representing a client at the time. For the same reasons
as those set forth, supra, that the Committee finds this argument unavailing with respect
to the alleged violations of Rule 3.4(a).
Respondent further argues that he did not violate Rule 3.4(a) because he did not
obstruct Elizabeth’s access to any evidence. He bases this position on the fact that
Elizabeth had access to the bank statements that reflected the unaltered checks. The
Hearing Committee is not swayed by this argument. The fact that Elizabeth was able to
deconstruct his deception does not nullify his violation of Rule 3.4(a). Under the
Respondent’s scenario, there could be no violation as long as the evidence is available
somewhere in an unaltered form. Such a loophole cannot exist.
19
Bar Counsel has proven a violation of Rule 3.4(a) by clear and convincing
evidence.
3. Rule 3.4(b) -- Falsifying Evidence
Rule 3.4(b) prohibits a lawyer from falsifying evidence. Respondent has admitted
that he submitted altered checks to the court in connection with his child support
proceedings. Those checks were altered to show that he had paid more than he actually
paid to Elizabeth and submitted to the court as evidence.
Respondent again argues that he cannot have violated Rule 3.4(b) as a matter of
law because he was not representing a client at the time that he falsified evidence. For
the same reasons that the Hearing Committee finds that Respondent violate Rule
3.3(a)(1), and Rule 3.4(a), the Hearing Committee finds that Respondent violated Rule
3.4(b).
Bar Counsel has proven by clear and convincing that Respondent violated Rule
3.4(b). 4. Rule 8.4(a) -- Knowingly Assisting or
Inducing Another to Violate the Rules or Violating the Rules Through the Acts of Another
Rule 8.4(a) prohibits a lawyer from violating the Rules of Professional Conduct
by knowingly assisting or inducing another to violate the rules or by violating the rules
through the acts of another. The evidence shows that Respondent altered the child
support checks and then provided the altered checks to his attorneys to submit to the
court. His attorneys, not knowing that the checks were altered submitted them.
Stipulation of Fact 20.
Respondent again argues that he cannot have violated Rule 8.4(a) because he was
not representing a client at the time and “he was acting in his personal and not
representative capacity.” Respondent Addendum to Respondent Oscar S. Mayers
20
Proposed Findings of Fact Recommended Sanctions and Conclusions of Law at p. 4. For
the reasons provided for Rule 3.3(a)(1), the Committee finds that argument unavailing.
By causing his attorneys to submit altered checks, Respondent violated Rule
8.4(a) through the acts of his attorneys. Bar Counsel has proven by clear and convincing
evidence that Respondent violated Rule 8.4(a).
5. Rule 8.4(b) -- Committing a Criminal Act that Reflects Adversely on the Lawyer’s Honesty, Trustworthiness, or Fitness as a Lawyer in Other Respects
Rule 8.4(b) prohibits a lawyer from committing a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other
respects. Respondent has admitted that he violated Rule 8.4(b) and the evidence supports
that violation. The record is clear that Respondent committed a criminal act. Respondent
entered into a plea agreement in which he admitted that he had violated 18 U.S.C. § 228
(a)(1). BXI 6. In that plea agreement, Respondent pled guilty to failure to pay child
support. The conduct underlying the factual basis for the plea agreement is that the
Respondent falsified checks that he caused to be presented or presented to the court in
support of court-ordered child support payments. Respondent’s actions were deceitful
and implicate his honesty, trustworthiness and his fitness as a lawyer.
The Hearing Committee finds that Bar Counsel has proven a violation of Rule
8.4(b) by clear and convincing evidence.
21
6. Rule 8.4(c) -- Engaging in Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation
Rule 8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation. There is no dispute that Respondent deliberately
represented to the court that he made child support payments that he had not made by
presenting altered checks to the court. Representing to the court that he had paid child
support that he had not was engaging in a fraud or deceit. Respondent admits that he
violated DR 8.4(c) and the evidence supports that violation.
The Hearing Committee finds that Bar Counsel has proven a violation of Rule
8.4(c) by clear and convincing evidence.
7. Rule 8.4(d) -- Engaging in Conduct That Seriously Interferes with the Administration of Justice
Rule 8.4(d) prohibits a lawyer from engaging in conduct that seriously interferes
with the administration of justice. Respondent admits that he violated Rule 8.4(d) and
the evidence supports that violation. There are three criteria for a violation of Rule 8.4(d)
to exist:
First, of course, the conduct must be improper. That is, the attorney must either take improper action or fail to take action when, under the circumstances, he or she should act. . . . Second, as explained in Shorter and clarified in L.R., the conduct itself must bear directly upon the judicial process (i.e., the “administration of justice”) with respect to an identifiable case or tribunal, This of course will very likely be the case where the attorney is acting either as an attorney or in a capacity ordinarily associated with the practice of law. . . . And third, the attorney’s conduct must taint the judicial process in more that a de minimis way; that is, at least potentially impact upon the process to a serious and adverse degree.
22
In re Hopkins, 677 A.2d 55, 60-61 (D.C. 1996) (citations omitted). The Committee finds
that the Respondent’s misconduct meets all of these criteria.
First, the submission of the altered checks was an improper act by the
Respondent. He deceitfully informed the court that he had paid more child support than
he had paid.
Second, the conduct had a direct bearing on the judicial process with respect to an
identifiable case because the checks were submitted to the court as part of the proceeding
relating to whether the Respondent was paying child support. The court’s decision
regarding whether the Respondent had made the necessary child support payments would
have been directly influenced by the fraudulent checks, if Respondent had gotten away
with his fraud. Thus, the Respondent’s actions had a direct bearing on the judicial
process and Respondent was aware that the checks would be before the court.
Third, the Respondent’s conduct had more than a de minimis effect on the judicial
process. Respondent attempted to deceive the court with respect to an integral part of the
court’s inquiry – how much money he had paid in child support. It is hard to imagine a
more important element to that inquiry than an examination of the payments. Yet, the
Respondent deliberately attempted to thwart that inquiry.
The Committee finds that Bar Counsel has proved a violation of Rule 8.4(d)
under the Hopkins criteria by clear and convincing evidence.
In summary, the Committee finds that the Respondent has violated Rule 3.3(a)(1),
Rule 3.4(a), Rule 3.4(b), Rule 8.4(a), Rule 8.4(b), Rule 8.4(c) and Rule 8.4(d).
B. Mitigation Evidence
The Respondent has submitted evidence in support of Kersey mitigation. He
argues that his sanction should be mitigated because he was suffering from a mental
illness -- major depressive disorder -- at the time of the misconduct. During the time that
23
Respondent engaged in his misconduct, he was undergoing a particularly emotionally
difficult time in his life. He had gone through the tragic suicide of his son and an
acrimonious divorce and was in the midst of a contentious custody and child support
proceedings. He also was accused of molesting his youngest daughter; charges which
were found to be unsubstantiated. Anyone experiencing these events would be
emotionally affected by them. The Hearing Committee does not discount the emotional
toll that these events took upon the Respondent. The question before the Hearing
Committee is whether these events and their subsequent impact on the Respondent
present evidence to support Kersey mitigation and should impact the sanctions that are
recommended.
In order to find Kersey mitigation, the Respondent must prove: (1) by clear and
convincing evidence that Respondent had a disability; (2) by a preponderance of the
evidence that the disability substantially affected his misconduct; and (3) by clear and
convincing evidence that he has been substantially rehabilitated. See In re Lopes, 770
A.2d 561, 567 (D.C. 2001); In re Stanback, 681 A.2d 1109, 1114-5 (D.C. 1996). The
Hearing Committee finds that the Respondent does not meet the requirements for
mitigation of sanction under Kersey, but has submitted general mitigating evidence that
supports some mitigation of the sanction that will be recommended.
Depression can be a mitigating factor under Kersey. See, e.g., In re Cappell, 866
A.2d 784, 785 (D.C. 2004) (respondent suffered from major depression at the time of the
misconduct); In re Katz, 801 A.2d 982 (D.C. 2002) (respondent suffered from
“depression and dysthymia”); In re Lopes, 770 A.2d at 568 (respondent suffered from
depression); In re Vohra, 762 A.2d 544 (D.C. 2000) (respondent suffered from major
depression); In re Robinson, 736 A.2d 983, 985, 989 (D.C. 1999) (respondent suffered
from dysthymia or long term depression); In re Dunietz, 687 A.2d 206, 208 (respondent
24
suffered from major depression) In re Peek, 565 A.2d 627 (D.C. 1989) (respondent
suffered from chronic depression). For depression to warrant Kersey mitigation, the
respondent must have been suffering from depression at the time of the misconduct and it
must be determined that the misconduct “would not have occurred but for” the
depression. See Cappell, 866 A.2d at 785.
Dr. Thomas Goldman provided a written opinion and testified for the Respondent
in support of Respondent’s claim for Kersey mitigation. Dr. Goldman testified about a
spectrum of depression ranging from a “mildly depressed mood” to major depressive
disorder. Tr. at 63:6 – 68:3. He testified that individuals with major depressive disorder
have severely depressed mood, have a marked lack of energy and initiative and motivation. That is they find it hard very often to get out of bed to do their work, to carry out their responsibilities. They may feel -- they may lack the ability to concentrate and pay attention either to their jobs or to their responsibilities at home. . . . They very often have sleep disturbances. . . . You’re irritable. You’re tired. You’re not thinking as clearly. Your attention isn’t as good. You’re not as creative. You’re not as flexible.
Tr. at 64:9-65:16.
According to Dr. Goldman’s testimony, Mr. Mayers had episodes of major
depressive disorder when his mother died in 1985 (Tr. at 72:6-10), when his ex-wife left
with the children and could not be found during the late 1980s (Tr. at 72:19 - 73:2), and
when his son committed suicide in 2000 (Tr. at 73:3-5; 75:9-11; 76:17-20). During each
of these periods, Respondent showed the symptoms of major depressive disorder
described by Dr. Goldman. Id.
Dr. Goldman opined that Respondent suffered from major depressive disorder
during the period of the misconduct. Tr. at 72:1-6; RX 27 at 102. In his Summary 2 The Committee also notes that Respondent was examined by Dr. Galler in October, 2000, Dr. Saunders in January, 2004, and Dr. Kaiser in March, 2004. Neither Dr. Saunders nor Dr. Galler diagnosed Respondent with Major Depressive Disorder. BXII 16; BXII 17. Dr. Saunders diagnosed Respondent
25
Report, he stated that during the time of the misconduct -- July, 2002 to November, 2003
-- Respondent’s “mental and emotional functioning was significantly impaired by
symptoms of Major Depressive Disorder.” RX 31 at 0034.
Dr. Goldman testified that he viewed Respondent’s depression as a “fluctuating”
one that enabled him to continue to work and function and in which he
compartmentalized his depression to the circumstances surrounding his misconduct. Tr.
at 86:13 – 87:6. This would explain why Respondent did not show symptoms of major
depressive disorder throughout the entire period of his misconduct. Tr. at 99:19 – 100:
18; 146:2 – 147:5. Dr. Goldman, however, was uncertain with respect to the amount of
time that Respondent was significantly depressed or somewhat depressed during the
period of the misconduct. He testified that Respondent was at least “somewhat”
depressed during that time.
Q. What can you say about the fluctuation of the depression during the period of the misconduct. Were there any periods from July 2002 to November 2003 where the depression may have lifted so that his thinking would not have been impaired where he could look at what he had done and say this is wrong. I shouldn’t have done it. Or was that entire time his thinking so impaired that he didn’t think – he thought he should have done it because of the way the judge was acting and the system was treating him and whatever.
A. Well that’s a very good question and I’m afraid I don’t know the answer to that. I think – I don’t know. I think that his capacity to be rational – I think a reasonable assessment would be that when matters came up that had to do with dealing with the specific issues around the checks and Judge Morin that those were periods that his anxiety and his depression were most exacerbated. That is when he had an actual dealing and it’s quite possible that on days when he didn’t have to think about that and could put it out of his mind he might have had days during which he was relatively okay. But I don’t want to be speculating here. I don’t know on how many days in that period he was significantly depressed and
with depressive disorder. In March, 2004, Respondent was diagnosed with Major Depressive Disorder by Dr. Kaiser. BXII 19.
26
how many days – but the impression he gave me -- I mean believing his report, which sounds coherent is that he was always, at least, somewhat depressed. When he wasn’t working, when he wasn’t focused on something – on work or something that he could do that took him outside of himself that these thoughts were intrusively coming back to him with the depression, with the anger with the anxiety.
Tr. at 144:13 - 146:1.
According to Dr. Goldman, Respondent alternated between a somewhat depressed
mood and major depression. At the exact times of the misconduct however, Dr. Goldman
would seem to have viewed Respondent as suffering from an episode of major depression
(his depression was “exacerbated”). Although he was uncertain with respect to the
fluctuations of Respondent’s depression, Dr. Goldman was consistent in his opinion that
Respondent suffered from some level of depression during the period of misconduct.
Bar Counsel presented Dr. Glenn Miller, who diagnosed Respondent with a
depressive disorder and personality disorder during the time of the misconduct. BXII at
21; Tr. at 214:11-12; Tr. at 210:10-15; Tr. at 278:12-22. Dr. Miller testified that the
symptoms of a depressive disorder “are sadness, crying, apathy, fatigue, inability to
move, inability to sleep, hopelessness, helplessness.” Tr. at 227: 12 – 14. During the
time of the misconduct, Dr. Miller characterized Respondent as being “traumatized:
hopeless ashamed.” BX II at 16. He had “multiple psychiatric symptoms that included
such features as bereavement, depression, trauma, avoidance anger, anxiety, guilt, and
suspiciousness.” BX II at 21.
Dr. Miller placed depressive disorder “somewhere in the middle” of the
depression spectrum – midway between a mild depression and a major depression. Tr. at
214:19-20.
Q. If there’s a line of mild depression way over here and major depression way over here, where would depressive disorder be?
27
A. Depressive disorder would be somewhere in the middle. I mean we have – there’s adjustment disorder with depressions. There’s so-called dysthymia. There’s major depressive disorder. There is bereavement, which is, as I say, not a psychiatric diagnosis. He had some depression but not one sufficient enough to make the diagnosis of major depression. I’d like to tell you why I didn’t make the diagnosis of major depression.
Tr. at 214:16 – 215:5.
Dr. Miller found that Respondent suffered depressive disorder, not major
depressive disorder, in the period before the misconduct and bereavement during the time
following the suicide of his son.
A. Okay. You were just about to say why you diagnosed depressive disorder rather than major depression in Mr. Mayers between the time of December 2000 and July of 2002 before the misconduct occurred. Why.
Q. Because he didn’t satisfy the criteria of a major depressive disorder. A major depressive disorder is, as I think Dr. Goldman was pointing out, is a very serious medical problem. It’s one – a typical picture is of a person who can’t or doesn’t get out of bed in the morning. Can’t go to work. Sits in a chair looking around the room. If he’s a man, he doesn’t shave. If it’s a woman, she may – or a man – she may soil herself. He doesn’t eat. He doesn’t move. His friends try to urge him or his family tries to urge him. The family takes a piece of food. He brings it close to his mouth. He put its down. He says nothing good will ever happen to me. There’s nothing I can do to change this stuff and he may entertain thoughts of suicide. It’s a degree, it’s a major degree. Now some of these things in the bereaved part, I think Mr. Mayers had.
Tr. at 217:11 – 218:6. Dr. Miller testified, that from July, 2002, through
November, 2003 -- the time of the misconduct -- Respondent was not suffering from a
substantial debilitating disorder or mental illness. Tr. at 232:20 – 233: 2. Even though
he was not suffering from a “substantial debilitating disorder or mental illness. Dr.
Miller still opined, however, that Respondent suffered from depressive disorder and a
personality disorder during the period of misconduct. BXII at 21; Tr. at 278:12 – 22.
Thus, both experts diagnosed Respondent with depression during the period of the
misconduct. The difference between the two diagnoses is the level of depression from
28
which Respondent suffered. The Committee finds more credible Dr. Miller’s testimony
that Respondent suffered from depressive disorder and not major depressive disorder
during the time of his misconduct. During the time of his misconduct, Respondent
exhibited none of the behavioral manifestations of a major depressive disorder, although
he did exhibit symptoms of depression. The Respondent continued to function
throughout the relevant time period. The evidence shows that Respondent was able to
continue his day to day activities during this time. He went to work, church, saw friends
and he participated in the contentious court proceedings in which he was involved. Tr. at
142:11-144:12. Dr. Goldman attributed this to Respondent’s ability to compartmentalize
his major depression to the circumstances surrounding his misconduct. Dr. Miller
viewed Respondent’s behavior as evidence that Respondent did not suffer from major
depression. Regardless of this disagreement between the two experts, however, there is
no dispute between them with respect to the fact that Respondent suffered from some
form of depression during the period of the misconduct.
The inquiry does not end there because Bar Counsel argues that to find Kersey
mitigation based on depression, the depression must be “major, or at least of a type to
substantially impair judgment and cognitive functioning or render the attorney
delusional.” Bar Counsel’s Proposed Findings of Fact, Conclusions of Law, and
Recommendation as to Sanction at 40-41. Case law, however, indicates that the first
prong of Kersey can be satisfied in cases where the depression is other than a major
depression disorder. Kersey mitigation has been found where the depression was long
term (In re Robinson, 736 A.2d at 985), and chronic (In re Peek, 565 A.2d at 632), as
well as major (In re Cappell, 866 A.2d at 784, In re Vohra, 762 A.2d at 544 and In re
Dunietz, 687 A.2d at 209). In re Katz provides no indication of the level of depression
only that the respondent suffered from depression and dysthymia. In Lopes, the
29
respondent suffered from “depression,” however, the disability was found based on the
depression “together with his reactions to Prednisone and Prozac and his extreme fatigue
and other symptoms . . . .” 770 A.2d at 568.
In the instant case, both experts opined that Respondent suffered from depression
throughout the time of the misconduct – a period of seventeen months. Both experts
agree that depression was more than a mild depression. Having considered the evidence,
the testimony of the experts and the law, the Committee concludes that the depression
does not have to be a major depressive disorder for a disability to be shown. Respondent
has proven that he suffered from a disability by clear and convincing evidence and has
satisfied the first prong of Kersey.
While the Committee finds that Respondent has proven the first prong of Kersey
by clear and convincing evidence, Respondent did not prove by a preponderance of the
evidence that the depression substantially affected his misconduct. The pertinent
question in this regard is whether “the misconduct would not have occurred but for his
depression.” Cappell, 866 A.2d at 784. The more credible evidence showed that it was
more likely that Respondent submitted the altered checks and engaged in his dishonest
conduct out of anger toward the judge, his ex-wife and his daughter or poor judgment
unrelated to any depression.
As stated supra, Dr. Goldman opined that Respondent’s “mental and emotional
functioning were significantly impaired by symptoms of Major Depressive Disorder . . .
.” RX 31 at 0034. His testimony was that Respondent’s depression caused a certain state
of mind in which he “lost his faith in justice” and felt altering the checks was the only
option for him to take. Tr. at 97:4-14. Dr. Goldman testified that Respondent’s
depression made him irrational. Tr. at 95:19-22. Because he was irrational he believed
that “to admit that his payments had been deficient would be essentially to admit guilt in
30
all phases. It would have meant the whole slate of charges – I’m a bad father. I’m a bad
husband. I’m an abusive person. I’m no good as an attorney.” Tr. at 95:4-9. Through
this testimony, Dr. Goldman attempted to link Respondent’s actions to his depression –
the Committee did not find this causal connection credible.
Dr. Miller more credibly testified that the Respondent’s problems with deep
rooted anxiety and anger were an equal or a greater cause of his misconduct than his
depression. Tr. at 237: 18 – 239:3.
Q. How did anger – did that play a role in what he did in terms of his misconduct.
A. Yes. I mean if you look at the histories, he’s been a very angry man and an angry boy. I think Dr. Goldman reported that he was taken to Walter Reed when his father there [sic] because of his anger. He’d been accused of being a bully, but he fought but wasn’t a bully. He’s been angry with his wife for all – you know, for the many years and part of what he did was, you know was an exacerbation of an angry man. I see it as he was basically angry at his wife and then he became angry with anyone who became associated with his wife. If Elizabeth, as he accuses her, writes e-mails or makes complaints against him which are engineered by his wife, then he gets really angry at Elizabeth. If Judge Morin does something which he perceives as favoring Sheila, then he gets angry at her. His response has been more, as I read his history, more angry rather than depressive. Indeed, when he went back to Kaiser later to see someone psychiatrically, which he was diagnosed as depressed, but he had really gone there because he was so angry – well, he was frightened and angry at his wife who was taking his child Gabby, and hiding out so that he couldn’t find her and he was terrified about that. So anxiety and anger, I think, play equal or greater part than depression.
Tr. at 237:20 – 239:3.
It should be noted that on cross examination, Dr. Goldman admitted that
Respondent had a problem with anger “since he was a young child.” Tr. at 112:3-112:12.
He testified that “Mr. Mayers has had some problems with anger and some – maybe some
chronic problems with pride and self-esteem.” Tr. at 168: 4-8. He also testified that
31
Respondent’s anger combined with a feeling of helplessness and hopelessness was a
significant factor in his actions.
Q. The symptom of anger, I mean that could just be anger. It doesn’t necessarily have to come from a mental illness. A lot of people are angry, in other words. Right?
A. Yes. I mean you’re making a good point. And of course, anybody can be just angry. The point that I made with respect to Mr. Mayers was that his anger was in the context of a particular feeling of helplessness and hopelessness and that that was that combination that caused the problems. That that’s a significant factor in him. But yes, anybody can be angry. Sure.
Tr. at 153:8 – 154: 12. See also Tr. at 87: 19 – 88: 9.
Dr. Miller convincingly testified that at the time of Respondent’s misconduct –
July, 2002, when the first altered check was submitted through November 2003, when the
court discovered the altered checks – the Respondent showed impaired judgment but it
could not be tied to a mental illness. Tr. at 223:6-224:16. In other words, he did not find
that Respondent’s actions were a result of impaired judgment from the depression. Tr.
223:6 - 224:16. He further testified that at the time of the misconduct, Respondent was
not suffering from a mental illness such that he could not control his actions.
Q. Could he control what he was doing at that time? Was he under the influence of a mental illness to such an extent that he could not control his actions?
A. Well, in the sense that someone is not in control because his behavior is so disorganized that he doesn’t know what he’s doing or he’s not in control because voices are telling him to do something.
Q. No, but I’m asking. My question was, was Mr. Mayers at that time under the influence of a mental illness to such extent that he could not control his actions?
A. I would conclude it.
Q. That he was?
32
A. I would conclude that he was not under the influence of a mental illness so substantive at that time that he could not control his actions.
Q. And he appreciated the wrongfulness of his actions at that time as far as you could tell?
A. Yes
Tr. at 228: 22 – 229: 17.
Dr. Goldman was in agreement with Dr. Miller that Respondent appreciated that
his actions were wrong. In Dr. Goldman’s opinion, Respondent “knew that it was wrong
[to submit the fraudulent checks and] if you had asked him, isn’t this wrong and aren’t
you breaking the law? I think he would have been able to answer, yes, it was wrong.” Tr.
at 129:6-9.
Dr. Miller, also testified that the depressive disorder he diagnosed would not have
resulted in the submission of forged checks. He credibly testified that there was no
“causal relationship between the misconduct that’s at issue here and the depressive
disorder” that he diagnosed. Tr. at 233:3 – 233:8.
I don’t see how submitting a forged check is a result of one of these symptoms. If, for example, he just didn’t send in a check, if he said I can’t you know, if someone said, you’ve got to send your daughter, you know, $500 and if he couldn’t get up to write a check and also – and also, didn’t write checks to anybody else. Because if he only didn’t write a check to his daughter, it makes it suspicious because it is a global kind of thing affecting a person. But if he said, I just can’t – I just can’t get – I just can’t write it. Or if he didn’t turn in – Judge Morin had asked him turn in these checks and even if he had written them wrongly and if he said I just can’t get myself to get to the bank or it doesn’t matter to me or no matter what I do it won’t make any difference, then I would understand it as a product of the depression. Then I could understand it that way.
Tr. at 227: 14-228:10.
Dr. Goldman’s testimony was not persuasive with respect to whether depression
or major depressive disorder substantially affected Respondent’s misconduct. Moreover,
33
he agreed that Respondent suffered from other personality traits that were important
influences on his conduct and that Respondent knew that his actions were wrong.
Weighing the testimony of Dr. Goldman and Dr. Miller, the Committee finds the
testimony of Dr. Miller more credible and persuasive.
Lopes is instructive. In Lopes the District of Columbia Court of Appeals refused
to find causation between physical and psychological ailments, including depression
(caused by the use of Prednisone), and dishonesty. The attorney in Lopes forged his
clients’ signatures on documents that he filed with the court, including an affidavit,
interrogatory responses and a notice of appointment, and otherwise neglected his clients’
matters. He claimed that his misconduct was substantially related to his use of
Prednisone, which had caused a number of side effects, including depression. The Court
of Appeals agreed with the Board that the respondent’s Kersey mitigation did not apply
to the dishonesty violations, finding the Board’s analysis “comprehensive, balanced,
thoughtful, and rational.” Lopes, 770 A.2d at 569.
The Board found no evidence, however, that Lopes’ ailments “caused him to forge signatures on documents he filed with the court.” The Board continued:
We are not satisfied that Respondent’s conclusion that there was a causal link between the Prednisone and his dishonesty is supported by the medical and other evidence in this case. Respondent’s conclusion that Prednisone “causes people to have bad judgment” appears to be an inference from Dr. McKoy’s testimony that the side effects of Prednisone include depression, confusion, disorientation and transient amnesia. We do not find the evidence sufficient to conclude that those side effects “caused Respondent’s dishonesty.
Dishonesty cuts away at the heart of the legal profession. We are not inclined to diminish the seriousness of that misconduct by relying on too tenuous a link between dishonesty and physical or psychological
34
impairments. The physical and psychological impairments under which Respondent labored undeniably were extremely difficult. We agree with the Hearing Committee that the picture Respondent painted of what he felt and experienced for a number of years was credible and sympathetic. There is no evidence, however, that the physical and psychological impairments, separately or in combination, either rendered Respondent unable to understand that he was being dishonest or unable to behave otherwise. Absent such evidence, we cannot conclude that the ailments were “sufficiently determinative of his conduct” to support a Kersey defense.
Lopes, 770 A.2d at 568-69. Similar to Lopes, there is no evidence that
Respondent did not understand that his behavior was dishonest or was not able to control
his actions; in fact, the evidence is the opposite. Respondent did not prove that his
dishonesty was caused by a disabling mental illness.
The Committee finds that Respondent has proven that he suffered from a
disability by clear and convincing evidence. The Committee does not find that the
Respondent’s actions were substantially affected by his disability and he has not proven
the second prong of Kersey by a preponderance of the evidence.
If the Board finds that Respondent was suffering from depression that supports
Kersey mitigation and that depression substantially affected his misconduct and thus
reaches the third prong of Kersey, the Committee recommends that the Board find that
the Respondent has been substantially rehabilitated. Currently, the Respondent is on
medication for depression that has eliminated that depression (it should be pointed out
that Respondent has resisted psychotherapy, however, he seems to have overcome his
depression without it.). Tr. at 160:1-160:14. He also has acknowledged his wrongdoing
and complied with all of the terms of his plea agreement. Dr. Goldman testified that
35
Respondent’s mood is stable and he is “peaceful.” See Tr.102:2-105:9. He further
testified that Respondent seemed like a “changed man.”
When I interviewed him in May, he seemed like a changed man, that is, that he seemed to be a peaceful man. He was not – the other times I’d interviewed him he was still angry. He had an axe to grind against Judge Morin. He had an axe to grind against Sheila. He was an angry man and it was very important for him to prove that he was right. He was still – the essence that he had to prove that he was right and everyone else was wrong. At this point he said he just – it wasn’t important anymore. What he wanted to have was a peaceful life. He was living at home. He had his father helping him out. He was seeing his daughter frequently and he just wanted to be at peace.
Tr. 102:17-103:8
Dr. Miller testified that Respondent was no longer “an angry man.” Tr. at 16-19.
It would appear that Respondent has taken all of the necessary steps to get his life back
on track.
Even though the Committee does not find evidence to support Kersey mitigation,
it finds that Respondent has submitted evidence that should be considered in general
mitigation of his sanctions. Both Dr. Miller and Dr. Goldman opined that Respondent
suffered from some degree of depression. Case law supports considering depression as a
mitigating factor when determining what sanctions to impose. See In re Sumner, 665
A.2d 986, 990 (D.C. 1995) (“While we accept as did the Hearing Committee, that
Respondent was in an episode of depression when he lapsed in his obligation to Mr.
Marshall, we weigh that mitigating factor against the prejudice to the client and
aggravation of delays in the criminal justice system caused by this type of conduct.”)
(footnote omitted); In re Drury, 683 A.2d 465, 468 (D.C. 1996) (reciprocal discipline
case in which suspension and fitness requirement stayed with two year probation
36
“because the respondent proved that he suffered from clinical depression at the time he
violated the rules of professional responsibility and because of other mitigating
factors.”).3
C. Recommended Sanction
The factors considered by the Court when considering the appropriate sanction
after a finding of misconduct include: the seriousness of the violation, prejudice to the
client, any mitigating and aggravating factors, the need to protect the public, the courts
and the legal profession, and the moral fitness of the attorney. See In re Hutchinson, 534
A.2d 919, 924 (D.C. 1987) (en banc); see also In re Slattery, 767 A.2d 203, 214-15 (D.C.
2001). Other factors to consider include the presence of misrepresentation or dishonesty,
Respondent’s attitude toward the underlying misconduct, prior disciplinary violations and
violations of other code provisions. In re Wright, 702 A.2d 1251, 1256 D.C. 1997); In re
Waller, 573 A.2d 780, 784-785 (D.C. 1990).
Considering all of these factors, the Hearing Committee recommends that the
Respondent be suspended from the practice of law for a period of eighteen months. The
Hearing Committee makes this recommendation based on the seriousness of the
misconduct, which involved a misrepresentation to the court and dishonesty, and the
existence of multiple violations of the disciplinary rules, as weighed against the
Respondent’s genuine regret for his actions, the lack of prior disciplinary violations, and
3 The Committee notes that case law indicates that the depression must be at least “connected” to the misconduct. It is unclear, however, how strong that connection must be. See, e.g,. In the Matter of Douglass, Bar Docket No. 51-95 at 14-15 (BPR October 25, 1999), Board recommendation adopted, 745 A.2d 307, 308 (D.C. 2000) (“Physical and mental health problems can appropriately be considered as matters in mitigation when, as here, there is a connection between those problems and the misconduct.”); In the Matter of Willcher, 404 A.2d 185, 189 (“misconduct was a result of, or at least exacerbated by, his debilitated mental condition”); In the Matter of Mizel, Bar Docket No. 445-96 at 11 (BPR August 22, 1997), Board recommendation adopted, 703 A.2d 1249, 1250 (D.C. 1997) ( chronic depression considered to be a mitigating factor where depression proved as a causal factor).
37
the mitigating factors of the Respondent’s overall depression caused by the
circumstances that the Respondent was experiencing at the time of his misconduct.
The seriousness of the misconduct, the presence of misrepresentation and
dishonesty, and the existence of multiple violations of the disciplinary rules, support a
severe sanction. The integrity of the judicial system relies upon attorneys upholding that
integrity and conducting themselves in an honest and forthright manner. That includes
ensuring that the participants in judicial proceedings can rely upon the truthful and
accurate nature of the submissions and representations made by attorneys participating in
judicial proceedings. The Respondent subverted that cornerstone of judicial proceedings
by deliberately deceiving the court for his own personal benefit. Nor was this a one time
deception. Respondent submitted altered checks on two occasions and over a prolonged
period of time. He perpetrated his fraud on the court from July, 2002 until the court
discovered the fraud in November, 2003. Moreover, he did not come forward on his
own, but only told the truth about his deception once he had been caught. Those actions
cannot be condoned.
Countervailing considerations in determining the sanction to be imposed are
Respondent’s sincere regret for his actions, the lack of any prior disciplinary violations
and the existence of factors that should be considered in mitigation. Respondent has
shown genuine remorse for his actions. He testified credibly that his actions were “the
stupidest thing I’ve ever done in my life, and I apologize. It was wrong.” Tr. at 325: 13-
15. His actions support that he regrets his misconduct – he took the steps necessary to
rectify the damage that was done by his actions – he has reimbursed the child support
owed to Elizabeth and pled guilty to a failure to pay child support. It also is noteworthy
that Respondent had a twenty year history as an Assistant Untied States Attorney with the
Department of Justice and has no history of prior violations of the disciplinary rules. The
38
incidents that have brought the Respondent to this point appear to be an aberration in an
otherwise spotless career.
In determining the appropriate sanctions to impose, the Committee seeks to
impose a sanction that results in a consistent disposition for comparable conduct. See
D.C. Bar R. IX, § 9(g); see generally In re Slattery, 767 A.2d 203, 215 (D.C. 2001); In re
Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc). Some guidance for the sanction
that should be imposed can be found in Goffe, where the respondent was disbarred. In
Goffe, “[t]he Hearing Committee concluded that respondent knowingly presented an
altered check with an intent to deceive, and lied to both the Tax Court and the Hearing
Committee about its origin and his involvement.” Goffe, 641 A.2d at 461. The
circumstances in Goffe, however, were more egregious than in the instant case because
the respondent went on to commit other acts of serious misconduct in another
proceeding. The Hearing Committee also “found that [in a civil] action, respondent had
altered paragraphs of [an] easement agreement by crossing out important sections of the
text that Mr. Kuperstein specifically wanted and that respondent had forged Mr.
Kuperstein’s initials on those paragraphs. His actions were intentional and knowing.”
Goffe, 641 A.2d at 463. The respondent’s misconduct in Goffe, spanned two separate
incidents of misconduct in two separate proceedings. Further, in Goffe, the respondent’s
“conduct showed a pattern of dishonesty and fabrication over a number of years.” Id. at
465. He had “chosen to use deceit and misrepresentation as a principal means of dealing
with the legal system.” Goffe, 641 A.2d at 466. Moreover, the respondent continued to
lie about his misconduct – even to the Hearing Committee – and there was no indication
that he understood the “impropriety of his conduct.” Id. Thus the conduct in Goffe was
more severe than it is in the instant case.
39
Unlike Goffe, respondent’s misconduct revolved around one issue in his divorce
and custody proceedings – child support. Respondent also has shown contrition for his
actions, taken the blame and paid the consequences. Finally, there are mitigating factors
that warrant consideration. The Committee concludes that a sanction consistent with
Goffe standards would fall short of disbarment.
In In re Marshall, 762 A.2d 530 (D.C. 2000), the attorney misappropriated funds
and submitted false checks to Bar Counsel during an investigation in an attempt to show
that he had paid a treating physician and a physical therapist, as he had agreed to do, with
settlement proceeds. While the disciplinary focus of Marshall was the misappropriation,
the Court of Appeals also condemned the attorney’s actions in submitting false
documents to Bar Counsel.
In addition, Marshall’s fabrication of evidence and his other misrepresentations to Bar Counsel reflect a complete perversion of the appropriate standards for members of our profession. “Honesty is basic to the practice of law. . . . A lawyer’s word to a colleague at the bar must be the lawyer’s bond. A lawyer’s representation to the court must be as reliable as a statement under oath.” In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc). Submission of fabricated documents to a disciplinary authority should be “unthinkable” for a lawyer, Goffe, supra, 641 A.2d at 464-68; In re Renfroe, 548 Pa. 101, 695 A.2d 401, 404 (Pa. 1997) (bribery of witness), and it warrants not only disbarment but also disgrace, shame, and obloquy.
Marshall, 762 A.2d at 536; see also Goffe, 641 A.2d at 464-65 (“‘Documents are an
attorney’s stock in trade, and should be tendered and accepted at face value in the course
of professional activity’”) (quoting In re Schneider, 553 A.2d 206, 209 (D.C. 1989)).
Based on the misappropriation, the sanction in Marshall was disbarment. Respondent’s
deliberate submission of altered documents to the court also warrants serious sanctions.
40
Unlike Marshall, however, there was no misappropriation of client funds by Respondent.
Marshall indicates that a sanction less than disbarment is appropriate.
Another similar case is presented by In re Slattery, 767 A.2d 203 (D.C. 2001). In
Slattery, an attorney was disbarred for misconduct over an approximately three year
period, during which he appropriated funds for his own personal use from a fraternal
order to which he had a fiduciary responsibility. He also filed a lawsuit seeking
disgorgement of funds related to the fraternal order and then provided false testimony in
the lawsuit regarding the theft of the funds. The sanction imposed on Slattery was
disbarment. While there are similarities to the instant case, there are again circumstances
that argue against a sanction as severe as disbarment for Respondent. The Respondent
did not commit theft. He also did not file a lawsuit based only on his self interest in order
to obtain funds that did not belong to him. This is not to diminish the seriousness of the
Respondent’s misconduct. The Committee, however, sees the Respondent’s
circumstances as falling short of requiring the sanction of disbarment.
This case is also similar to In re Parshall, 878 A.2d 1253 (D.C. 2005), in which
an attorney was suspended for eighteen months for submitting a false status report with
attached fabricated documents to a United States District Court. In Parshall, the attorney
expressed sincere regret for his actions, had no prior disciplinary problems “cooperated
fully with Bar Counsel” and “participated in pro bono programs and provided
representation to indigent persons in the past.” 878 A.2d at 1254 n. 4. Similarly, here,
Respondent has admitted and pled guilty to his misconduct and expressed sincere regret
for his actions. He has no prior disciplinary problems and there are mitigating factors.
Finally, further guidance for the nature of the sanction that should be imposed on
Respondent can be found in Hutchinson. In Hutchison, the attorney lied to the Securities
and Exchange Commission in connection with stock purchases based on insider
41
information. The Board recommended a one-year suspension. In reviewing the Board’s
recommendation, the Court considered “significant factors in mitigation.” Those factors
included the absence of a prior disciplinary record and the fact that “[s]ince being
admitted to the bar in 1968, he ha[d] had a distinguished career encompassing both
government service and private practice.” 534 A.2d at 924. Hutchinson also had
“recanted his testimony of his own volition” and “voluntarily surrendered all profits from
his illegal trading.” He showed remorse for his actions. The Court also noted that the
incidents were isolated and were not undertaken in connection with any court proceeding.
Id. Moreover, the respondent’s mental state at the time of the violations also was taken
into consideration. 534 A.2d at 925.
Similar to Hutchinson, Respondent does not have any prior disciplinary violation,
and he has shown true remorse for his actions. Like Hutchinson, Respondent’s mental
state at the time of the violations also should be taken into consideration. Overall,
however, Respondent’s misconduct was more egregious than the misconduct in
Hutchinson. Unlike Hutchinson, the Respondent’s misconduct was in connection with a
court proceeding. The Respondent’s misconduct also spanned a period from July 2002,
to November 2003 – until the Respondent’s deception was uncovered by the court. Thus,
unlike Hutchinson, the Respondent did not come forward on his own to admit to his
misconduct; he was caught. These facts support a period of suspension that is greater
than the one year suspension imposed in Hutchinson.
Considering the sanction parameters provided by cases involving similar
misconduct, the Committee recommends that Respondent be suspended from the practice
of law for a period of eighteen months.
Respondent requests that any period of suspension run nunc pro tunc from March
16, 2005. The Hearing Committee does not recommend imposition of a nunc pro tunc
42
sanction. First, there has been no notification of the public of the Respondent’s
suspension. Filings with Bar Counsel, the Board and the Court do not substitute for the
extensive public notification process that follows a Court-ordered suspension. As Bar
Counsel points out, “Esquire” is still used by Respondent after his name, which would
indicate to the public that he is a practicing attorney. Second, there are no unique and
compelling circumstances warranting nunc pro tunc treatment. Respondent argues that
the circumstances are unique and compelling because Respondent admitted his mistakes
and there is “a significant improbability of Mr. Mayers repeating the misconduct in the
future.” Respondent Oscar S. Mayers’ Proposed Findings of Fact, Conclusions of Law
and Recommended Sanction at 32. The fact that Respondent admitted his wrongdoing
after being caught, obtained treatment for his depression and has otherwise taken steps to
put his life in order does not strike the Committee as anything unique or compelling.
Faced with the difficulties that he faced, Respondent’s actions are not out of the ordinary
for someone who is in the process of overcoming a difficult period in his life. While
these factors argue against a fitness requirement, as discussed infra, they do not support
imposition of a nunc pro tunc sanction.
Bar Counsel requests that the Committee impose a fitness requirement. The
Committee does not recommend a fitness requirement. In order to impose a fitness
requirement, Bar Counsel must show clear and convincing evidence in the record “that
casts a serious doubt upon the attorney’s continuing fitness to practice law.” In re Cater,
887 A.2d 1, 24 (D.C. 2005). That serious doubt has not been established by clear and
convincing evidence. Respondent’s misconduct was in response to very particularized
events that were occurring in his life. He acknowledged and accepted his wrongdoing
and has complied with the terms of his conviction. He also currently is on medication to
treat his depression. The Committee sees very little to no chance of the events that took
43
place occurring again. In order to impose a fitness requirement, the Committee must
look to the future to determine whether Respondent will again engage in the misconduct
for which he is being sanctioned. Because the Committee sees little chance of that
happening, a fitness requirement will not be imposed.
V. CONCLUSION
The Committee finds that Bar Counsel has proven by clear and convincing
evidence that Respondent has violated Disciplinary Rule (“DR”) 3.3(a)(1) (making a
false statement of material fact or law to a tribunal), DR 3.4(a) (altering destroying or
concealing evidence), DR 3.4(b) (falsifying evidence), DR 8.4(a) (knowingly assisting
or inducing another to violate the Rules or doing so through the acts of another), DR
8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer), DR 8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation) and DR 8.4(d) (engaging in conduct that
seriously interferes with the administration of justice). The Committee further finds that
Respondent has not proven he is entitled to Kersey mitigation because although he has
proven that he was suffering from a mental illness at the time of the misconduct, he has
not proven that any mental illness was a substantial cause of his misconduct.
Respondent, however, has presented general mitigation evidence. Accordingly, the
Committee recommends that Respondent be suspended from the practice of law for a
period of eighteen months. The Committee does not recommend a suspension nunc pro
tunc from March 16,2005, and does not recommend a fitness requirement.
HEARING COMMITTEE NUMBER ELEVEN
By: Patricia G. Butler Chair
%&~d&<2& Frederick E. Woods
Dated: MAY 3 0 2007
Mr. Barker has fikd separate concurring and dissenting statement.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD OF PROFESSIONAL RESPONSIBILITY
HEARING COMMITTEE NUMBER ELEVEN
In the Matter of: : :
OSCAR S. MAYERS, : :
Respondent. : Bar Docket No. 443-03 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 407619) :
DISSENTING STATEMENT OF PUBLIC MEMBER JOHN F. BARKER
I agree with the Hearing Committee’s findings, as contained in Sections I, II, III,
and IVA, of its report and recommendation.
As stated in the report, the “record is clear that Respondent committed a criminal
act”, specifically a violation of 18 U.S.C. Section 228(a)(1). The violations include
making false statements under oath before a legal tribunal, altering, destroying, or
concealing evidence, and falsifying evidence.
The report also concludes that Respondent has violated Rule 3.3(a)(1), Rule
3.4(a), Rule 3.4(b), Rule 8.4(a), Rule 8.4(b), Rule 8.4(c), and Rule 8.4(d).
I concur.
Sections IVB, IVC, and V consider factors in mitigation and a recommended
sanction. I do not concur in the Hearing Committee’s findings on mitigation nor in its
recommended sanction.
The Hearing Committee report concedes that Respondent fails to meet the
necessary conditions for Kersey mitigation, (clear and convincing evidence of a
2
disability, such disability substantially affecting his or her misconduct, and substantial
rehabilitation). It maintains, however, that Respondent has “submitted general mitigating
evidence that supports some mitigation of the sanction that will be recommended”.1
I cannot concur in this finding.
Respondent has committed serious criminal offenses. Although remorseful, he
has presented no clear and convincing evidence of substantial rehabilitation. Remorse
does not, by itself, demonstrate Respondent’s rehabilitation. especially in light of the
nature of the crimes he has admitted to. A member of the Bar of the District of Columbia
is expected to obey the law and show respect for its legal institutions. By committing
these offenses, Respondent has betrayed the trust conveyed to him by the Bar and by the
Court. “Genuine regret”, “lack of prior disciplinary violations”, and “overall depression”2
do not, in the opinion of the Public Member of this hearing panel, mitigate the
seriousness of his offense nor justify a less serious sanction. Furthermore, Respondent’s
admission that this offense constitutes “the stupidest thing I’ve ever done in my life”3
does not provide sufficient grounds to declare that Respondent is substantially
rehabilitated; only that he is aware that he did wrong.
There is no denying that Respondent committed criminal acts and violations of
District of Columbia Bar rules and regulations during a period of his life when he was
clearly in the “belly of the whale”, dealing with a multitude of extremely serious personal
problems that engender genuine sympathy and compassion on the part of this hearing
committee. However, conviction on serious criminal charges - absent a Kersey defense
1 Hearing Committee Report, p.23 2 Hearing Committee Report, p.36 3 Ibid. p. 37
that the disability created by these serious problems "substantially affected his
misconduct'" - forces me to dissent on the lenient sanction recommended by the Hearing
Committee. Any recommended sanction should accurately reflect the seriousness of the
offense. Eighteen months suspension does not, in this case, achieve that goal.
J John F. Barker
4 Ibid. p.23