DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

AD HOC HEARING COMMITTEE In the Matter of: : : OSCAR S. MAYERS, JR., : : Respondent. : Board Docket No. 10-BD-129

: Bar Docket No. 2008-D515 A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 407619) :

REPORT AND RECOMMENDATION OF AD HOC HEARING COMMITTEE

In this contested disciplinary proceeding, Bar Counsel has alleged violations of the

standards governing the practice of law in the District of Columbia, as set forth in D.C. Bar R.

XI, § 2 (b). Bar Counsel avers that Respondent, a member of the Bar of the District of Columbia

Court of Appeals since February 6, 1987, violated several District of Columbia Rules of

Professional Conduct (“Rules”) in connection with his representation of Alexander Shepard in

2007 and 2008, and his response to Bar Counsel’s investigation.

The Second Amended Specification of Charges contains two counts: (1) violations of

D.C. Bar R. XI, § 2(b)(3) and Rules 1.1(a), 1.1(b), 1.3(a), 1.4(a), 1.4(b), 1.15(a), 1.15(d), 1.16(d),

3.3(a), 3.4(c), 5.5(a), 8.1(a), 8.4(c), and 8.4(d) in connection with Respondent’s representation of

Mr. Shepard during a time when his license to practice law was restricted or suspended

(collectively referred to as “Count I”); and (2) violations of D.C. Bar R. XI, § 2(b)(3) and Rules

3.4(a), 3.4(c), 8.4(b), and 8.4(d) in connection with destruction of evidence under subpoena by

Bar Counsel (collectively referred to as “Count II”). Bar Counsel bases Count I on Respondent’s

alleged agreement to provide legal advice to Mr. Shepard regarding a possible medical

malpractice claim originating in the District of Columbia. In the course of his interactions with

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Mr. Shepard, Bar Counsel alleges that Respondent held himself out as authorized to practice law,

accepted funds for advance expenses and/or legal fees from Mr. Shepard without maintaining

them in trust and separate from his personal funds, misappropriated those funds, failed to

promptly return Mr. Shepard’s medical records after he terminated the representation, and filed a

false affidavit with the District of Columbia Court of Appeals (after the Court suspended his

license) stating that he had no clients or client papers or property, at a time when he represented

Mr. Shepard and had custody of his records. Respondent denies these allegations and, instead,

avers that he was trying to help Mr. Shepard as a friend and did not intend to establish an

attorney-client relationship. He further contends that he did not deposit Mr. Shepard’s funds into

his personal account.

Bar Counsel bases Count II on Respondent’s alleged actions following the filing of a

complaint by Mr. Shepard and initiation of an investigation by Bar Counsel. In particular, Bar

Counsel contends that Respondent allowed his laptop computer to be destroyed while the

computer was under subpoena by Bar Counsel and did not disclose the fact that he had given

permission to a computer repair service to destroy his laptop until a different Ad Hoc Hearing

Committee had denied his motion to quash the subpoena and ordered him to produce the

computer. Respondent asserted his Fifth Amendment privilege against self-incrimination in

response to Count II.1 He claimed, however, that Bar Counsel would not have found anything

useful on his laptop computer because he had not retained emails to and from Mr. Shepard.

The Hearing Committee has considered all the testimony, evidence, papers, and argument

presented by both Bar Counsel and Respondent. In light of the clear and convincing evidence

presented, the Hearing Committee finds that Respondent:

1 See April 28, 2011, Hearing Transcript at 118-119, 133 (hereinafter cited as “Tr. at ##”).

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(1) failed to keep Mr. Shepard’s funds separate from his personal funds and hold them in trust or keep any records related to them (in violation of Rule 1.15(a));

(2) misappropriated Mr. Shepard’s funds (in violation of Rules 1.15(a) and 1.15(d));

(3) failed to return Mr. Shepard’s medical records to him in a timely manner (in violation of Rule 1.16(d));

(4) knowingly made a false statement of fact to the Court of Appeals and Bar Counsel, when he filed an affidavit following suspension of his license in March 2008 (in violation of Rules 3.3 and 8.1(a));

(5) knowingly disobeyed a Board order that required him to notify Bar Counsel prior to his representation of Mr. Shepard (in violation of D.C. Bar R. XI, § 2(b)(3) and Rule 3.4(c));

(6) practiced law during a period when he was not permitted to do so, because his license was suspended (in violation of Rule 5.5(a));

(7) allowed his laptop computer to be destroyed in disregard of the outstanding subpoena from Bar Counsel (in violation of Rules 3.4(a) and 3.4(c));

(8) committed a criminal act that reflects adversely on his honesty by failing to preserve the laptop while it was under subpoena (in violation of Rule 8.4(b));

(9) engaged in conduct that seriously interfered with the administration of justice when he submitted a false affidavit to the Court and later failed to comply with Bar Counsel’s subpoena of his laptop (in violation of Rule 8.4(d)); and,

(10) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in both his dealings with Mr. Shepard and his interactions with the Court and Bar Counsel (in violation of Rule 8.4(c)).2

Consequently, the Hearing Committee hereby recommends a sanction of disbarment.

2 In its Proposed Findings of Fact, Conclusions of Law, and Recommendations as to Sanction (hereinafter cited as “BC Post-hrg. Br.”), Bar Counsel conceded that it had not met its burden of proof with regard to the alleged violations of Rules 1.1(a), 1.1(b), 1.3(a), 1.4(a), and 1.4(b) and, therefore, dropped those charges. BC Post-hrg. Br. at 3, 15-16. The Hearing Committee is required to make findings on all charged violations. See In re Drew, 693 A.2d 1127 (D.C. 1997) (per curiam) (appended Board report). We have examined the record and find that Bar Counsel has failed to prove these charges by clear and convincing evidence.

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I. Procedural History

Mr. Shepard filed a complaint against Respondent with Bar Counsel on November 11,

2008. Bar Counsel investigated the allegations in the complaint and filed a Specification of

Charges against Respondent on December 10, 2010. Bar Counsel subsequently amended the

Specification of Charges twice; it filed the Second Amended Specification of Charges on April

20, 2011. Respondent initially filed a generalized “Exculpatory Statement in Response to

Specification of Charges” on December 30, 2010, that included Respondent’s first motion to

dismiss the Specification of Charges. Bar Counsel opposed Respondent’s motion and cross-

moved for an order requiring Respondent to file an answer. Following a pre-hearing conference

on March 7, 2011, the Hearing Committee issued an order requiring, inter alia, that Respondent

file an Answer to the Specification of Charges. On March 14, 2011, Respondent filed a

document in which he responded to Bar Counsel’s opposition to his motion to dismiss, and Bar

Counsel’s cross-motion for an order requiring Respondent to file an Answer, and in which he

moved for “default and/or dismissal.” On April 7, 2011, Respondent filed an Answer and a third

motion to dismiss. On April 20, 2011, Respondent filed an Answer to Bar Counsel’s Amended

Specification of Charges. Respondent did not file an Answer to the Second Amended

Specification of Charges, which differed from the Amended Specification insofar as it alleged

that Respondent’s misappropriation was intentional or reckless.

The Hearing Committee conducted an evidentiary hearing on Thursday, April 28, 2011.

Bar Counsel called Capital One Bank Assistant Branch Manager Fernando Fuentes and

Respondent as witnesses. Respondent called no witnesses. Neither party called Mr. Shepard to

testify and he was not present at the hearing. The Hearing Committee admitted Bar Counsel’s

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exhibits A-D, 1-7 and 9-20, and Respondent’s exhibit 1 into evidence during the hearing.3 See

Tr. 164-65. The Hearing Committee reserved ruling on the admission of Bar Counsel’s exhibit 8

(consisting of Respondent’s bank records) to consider the argument in Respondent’s motion in

limine that the $1,500 check contained within Bar Counsel’s exhibit was “forge[d] and/or

fabricated.” Respondent’s Answer to Amended Specification of Charges, and Opposition to Bar

Counsel’s Motion to Reconsider, and Motion In Limine, at 2-3. Based on Mr. Fuentes’

testimony (Tr. 29-31), we find that the documents that comprise Bar Counsel exhibit 8 are

authentic and admissible. As such, we deny Respondent’s motion in limine and accept the

exhibit into evidence.

On June 13, 2011, Bar Counsel filed its Proposed Findings of Fact, Conclusions of Law,

and Recommendation as to Sanction in accordance with the schedule set forth by the Hearing

Committee at the close of the evidentiary hearing. Respondent did not file a post-hearing brief in

accordance with this schedule and, instead, on August 23, 2011, filed an emergency motion to

reopen the record, a fourth motion to dismiss, and a motion to disqualify Bar Counsel and for an

independent investigation of Bar Counsel. Bar Counsel opposed Respondent’s motions on

August 29, 2011. By Order of November 17, 2011, the Hearing Committee granted the motion

to reopen the record, in part, deferred the motion to dismiss, and denied the motion to disqualify

Bar Counsel and order an independent investigation of Bar Counsel. Although Respondent did

not request additional time to file a post-hearing brief, the November 17, 2011 Order granted

Respondent fifteen days from the date of the Order to file such a brief. Respondent filed a “Brief

on Finding [sic] of Facts; Points and Authorities; and Memorandum of Law” (hereinafter cited as

“Resp. Post-hrg. Br.”) on December 6, 2011. Bar Counsel filed a Reply Brief on December 9,

3Bar Counsel’s Exhibits will be cited as “BX #”; Respondent’s Exhibit will be cited as “RX #”.

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2011. On February 24, 2012, Respondent filed a “Petition of Suggestion of Death of

Complainant,” requesting that the Hearing Committee dismiss the charges against him and abate

the disciplinary proceedings in light of the death of Mr. Shepard on January 30, 2012.

II. Findings of Fact

The Hearing Committee makes the following findings of fact based on clear and

convincing evidence provided in numerous documents, as well as in oral testimony taken at the

hearing on April 28, 2011, as cited below.

A. Background 1. Respondent is a member of the Bar of the District of Columbia Court of Appeals;

he was admitted on February 6, 1987, and assigned Bar number 407619. BX A (Registration

Statement).

2. On March 15, 2006, as part of an unrelated disciplinary matter, the Board ordered

Respondent not to resume the practice of law without first providing Bar Counsel with: (1) 90-

day prior notification of his intent to do so; and, (2) a medical report demonstrating that he was

fit to do so. Order, In re Mayers, Bar Docket No. 443-03 at 7 (BPR Mar. 15, 2006) (BX 10).

3. On March 20, 2008, the Court of Appeals suspended Respondent from the

practice of law in connection with the same matter for 18 months. In re Mayers, 943 A.2d 1170,

1172 (D.C. 2008) (per curiam).

B. Respondent’s Interactions with Alexander Shepard

4. In or about April 2007, while the Board’s March 15, 2006 Order was in effect,

Respondent agreed to consult with Mr. Alexander Shepard regarding potential legal claims Mr.

Shepard wished to assert in connection with a medical procedure he had, and his related

involuntary retirement from the Metropolitan Police Department of the District of Columbia

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(“MPDC”). BX 5 (Bates No. 40); Tr. at 66-70. Respondent knew Mr. Shepard from

Respondent’s prior service as an Assistant United States Attorney in the District of Columbia

and their work on cases together when Mr. Shepard was a police officer. Tr. at 62-63. BX 1

(Bates No. 3). When he agreed to consult with Mr. Shepard, Respondent had not provided to

Bar Counsel either a 90-day notice of his intent to practice law or a medical report regarding his

fitness to do so, as required by the Board’s March 15, 2006 Order. Respondent’s Answer to

Specification of Charges at 6, ¶ 2; Tr. at 68-69.

5. Respondent’s consultation with Mr. Shepard consisted of reviewing a large

volume of Mr. Shepard’s medical documents, evaluating the applicable statute of limitations and

potential damages, and advising Mr. Shepard as to whether he might have viable legal claims

against the physician who performed the medical procedure and/or the MPDC. Tr. at 71-75,

128-131. Such claims, if any, arose in the District of Columbia and involved District of

Columbia law. BX 5 (Bates Nos. 41-42) (Respondent noted in his response to Bar Counsel that

it was difficult for him to determine when the District of Columbia statute of limitations expired

on Mr. Shepard’s claim). Although Respondent asserted that he “consulted” with Mr. Shepard to

assist him in finding an attorney who would represent him (BX 5 at 41), there is no evidence that

Respondent ever referred Mr. Shepard’s case to another attorney.

C. Respondent Accepts a $1,500 Check from Mr. Shepard.

6. Early in his consultation with Mr. Shepard, Respondent accepted a check for

$1,500 from Mr. Shepard dated April 22, 2007, and made out to Respondent, with the notation

“MAY–JULY 2007 MONTHLY LEGAL PYMTS PER AGRMENT” on the memo line. BX 8

(Bates Nos. 55, 56); Tr. at 65-66. Respondent kept no records related to the money he received

from Mr. Shepard. BX 7, ¶¶ 5-6; Tr. 87-88.

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7. At various points in the disciplinary proceedings, Respondent made conflicting

assertions regarding his receipt of a $1,500 check from Mr. Shepard. Respondent first testified

that he could not recall receiving a check from Mr. Shepard (Tr. 65, 125-26), then later

acknowledged receiving the funds, (Tr. 90, 125; BX 7 at 5), but said that he did not recall what

he did with the check. Tr. 92.

8. We find that Respondent received the check from Mr. Shepard and deposited it

into his personal checking account at Chevy Chase Bank4 on May 7, 2007. BX 8 (Bates No. 55,

60); Tr. at 35. The account was not a lawyer’s trust, or IOLTA, account. Tr. at 31-32.

9. Although Respondent ultimately admitted receiving a check for $1,500 from

Mr. Shepard, (BX 7 (Bates No. 51, ¶¶ 5-6)), there is conflicting evidence as to the purpose of the

$1,500 payment to Respondent. Despite the notation on the memo line of the check, Respondent

contends that the check was to be used to pay the physician with whom he consulted as an expert

about the nature of Mr. Shepard’s legal claims. BX 5 (Bates No. 44); Tr. at 85-87, 92, 94-95.

Respondent contends that these funds were not client funds because Mr. Shepard was not his

client. BX 5 (Bates No. 44); Tr. at 70.

10. The evidence is not sufficient for the Hearing Committee to determine whether

the $1,500 reflected an advance payment of fees (as reflected on the check’s memo line), or an

advance payment of expenses (as Respondent testified). It is not necessary for the Hearing

Committee to resolve that question, however, because the evidence is clear that the payment was

an advance payment to be used to pay for one of the two, or both. It was not a payment for past

4 Chevy Chase Bank subsequently merged with and changed its name to Capital One Bank. Tr. at 29, 37.

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services or expenses. As such, we find that, under Rule 1.15(d),5 the funds were those of Mr.

Shepard and Respondent was obligated to hold them in trust until they were spent on Mr.

Shepard’s behalf.

11. Respondent offered no evidence of payment to the physician, whom he identified

at the hearing as Dr. Roy Heron. Tr. at 97, 101-102, 120-122. Instead, Respondent’s bank

records for the account in which he deposited the $1,500 check reflect a variety of small

expenditures over the course of the next three weeks (BX 8 (Bates Nos. 60-61, 63-65)),

culminating in a negative balance by May 24, 2007. BX 8 (Bates Nos. 64, 65). Respondent’s

bank statements between April 17 and December 14, 2007, for that same account do not show

any withdrawal of $1,500 or any check written for that amount. BX 8. The bank records

included in Bar exhibit 8—covering the period April 14-December 14, 2007—show that, after

Respondent deposited the $1,500 check on May 7, 2007, his account was overdrawn on the

following dates: May 24-25, June 19-26, August 14-15, and August 23-30. BX 8 (Bates Nos.

65, 70, 75, 79)). These records also show that, between May 7 and December 14, 2007, the

balance in Respondent’s account fell below $1,500 on the following dates: May 24-25, May 30,

June 5-July 30, August 6-September 5, October 4-11, October 24-30, November 19-26, and

December 5-14. Id. (Bates Nos. 65, 70, 75, 79, 80, 84, 90, 95-96).

12. In a November 26, 2008, letter to Bar Counsel, Respondent represented that he

initially paid the cost of the medical consultation from his own funds and, therefore, the $1,500

payment was intended to reimburse him for this expense. BX 5 (Bates No. 42). We find that

this representation was not credible because, in the same letter, Respondent also represented that

Mr. Shepard sent him the check because the medical expert complained that “he could no longer 5 Following the revision of Rule 1.15 in August 2010, Rule 1.15(d) was re-numbered as Rule 1.15(e). Throughout this report, we refer to the Rule in effect at the time of the events at issue, Rule 1.15(d).

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review [the] case for free.” Id. (Bates No. 44); see also Tr. 126 (Dr. Heron requested payment

after he had reviewed some of the records). Similarly, as noted above, Respondent testified that

the $1,500 was to be used to pay Dr. Heron, not to reimburse himself for funds already spent on

a medical consultation. See, e.g., Tr. at 98-99 (Respondent testified that Dr. Heron complained

that he was “not getting a dime” for reviewing the records). Respondent also testified that he

“knew [he] gave [Dr. Heron] something for his time,” (Tr. 95), but Respondent could not recall

how much or when he paid Dr. Heron; indeed, at one point Respondent suggested that he may

have compensated Dr. Heron by taking him out to several lunches or dinners. Tr. 95-96.

13. Based on the evidence presented during the hearing, including our ability to

observe Respondent and assess his demeanor, we find that Respondent did not pay on Mr.

Shepard’s behalf any of the $1,500 he received from Mr. Shepard to Dr. Heron or anyone else.

Although we do not believe Respondent’s testimony that the $1,500 payment was to reimburse

Respondent for a prior payment to Dr. Heron, or that he ever paid any money to Dr. Heron, we

cannot find clear and convincing evidence that Respondent’s contrary representations were false.

Instead, we find only that his representations were inaccurate due to their contradictory nature

and his lack of a clear recollection.

D. Mr. Shepard Provides Respondent with his Medical Records.

14. As noted above, beginning in or about April 2007 and continuing for some time

thereafter, Mr. Shepard also provided Respondent with approximately 1,500 pages of medical

records and other documents to assist Respondent in evaluating Mr. Shepard’s legal claims. BX

5 (Bates No. 43 at ¶ 2); BX 7 at 3, ¶ 1; Tr. at 83-85. There is no specific evidence in the record

as to when this document review began; because Respondent testified that he asked Mr. Shepard

for the $1,500 payment after Dr. Heron had begun reviewing the records (Tr. 88), however, we

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conclude that Respondent must have begun the record review before April 22, 2007, the date on

Mr. Shepard’s check. See BX 8 (Bates No. 55); see also BX 7 at 3 (Respondent represented to

Bar Counsel that Dr. Heron said he could not continue to review Mr. Shepard’s records for free).

15. Respondent reviewed Mr. Shepard’s medical records, consulted with Dr. Heron,

and provided legal advice to Mr. Shepard regarding the applicable statute of limitations, the

potential for tort damages, and the applicable standard of care for a medical malpractice claim in

the District of Columbia, for the purpose of advising Mr. Shepherd as to whether he might have a

viable legal claim. BX 5 (Bates Nos. 40-45); Tr. at 70-74.

E. Mr. Shepard Terminates Respondent and Files a Disciplinary Complaint

16. On November 11, 2008, Mr. Shepard filed a complaint with Bar Counsel alleging,

inter alia, that he had entered into an agreement with Respondent to represent him in a medical

malpractice case, provided a large quantity of his medical records to Respondent, and paid

Respondent $5,000 as a retainer. BX 1 (Bates Nos. 1-2). Mr. Shepard further alleged that he

was unaware of any restrictions on Respondent’s ability to practice law when he provided his

records and payment to Respondent. BX 1 (Bates No. 3).

17. In his complaint, Mr. Shepard also asserted that he confronted Respondent in July

2008 by email when he learned the Court had suspended Respondent’s Bar license for 18

months, and that he terminated the representation on November 5, 2008, and asked Respondent

to return his medical records and refund his money. BX 1 (Bates Nos. 4, 8); BX 2 (Bates No.

13). Respondent did not refund any money to Mr. Shepard. Tr. at 64.

18. Soon thereafter, Bar Counsel initiated an investigation into the allegations in Mr.

Shepard’s complaint. As part of its investigation, Bar Counsel sent Respondent a letter on

January 28, 2009, asking him to provide information regarding his interactions with Mr.

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Shepard. BX 6 (Bates Nos. 47-48). In particular, Bar Counsel requested an explanation of any

actions taken by Respondent to return Mr. Shepard’s medical records, the name of the medical

expert Respondent contacted on behalf of Mr. Shepard, copies of any correspondence

Respondent had with Mr. Shepard or the medical expert, and information related to any

payments to Respondent by Mr. Shepard. Id.

19. In a letter to Bar Counsel dated February 11, 2009, Respondent admitted that he

had been in possession of Mr. Shepard’s medical records and stated that he had returned them to

Mr. Shepard via FEDEX on February 10, 2009. BX 7 at 3, ¶ 1, and 5, ¶ 8. Respondent further

acknowledged that he had consulted a medical expert regarding Mr. Shepard’s medical

procedures. BX 7 at 3-4, ¶ 2. Respondent also acknowledged exchanging emails with

Mr. Shepard that discussed Mr. Shepard’s medical situation, but said he had not retained the

email correspondence. BX 7 at 4, ¶ 3. In addition, Respondent simultaneously denied that

Mr. Shepard had sent him “any checks,” then admitted that “the only check [Mr. Shepard] sent

[him] was for the medical consultant in the amount of $1,500.” BX 7 at 5, ¶ 5. Finally,

Respondent denied receiving $3,500 from Mr. Shepard at any time. BX 7 at 5, ¶ 7. Based on the

evidence presented during the hearing, and the absence of any evidence corroborating

Mr. Shepard’s assertion that he paid Respondent more than $1,500, we find that Mr. Shepard

paid Respondent only $1,500.

20. In his letter terminating Respondent, Mr. Shepard had demanded that Respondent

provide his file to Mr. Shepard’s friend, Joseph P. Thomas, within ten days. BX 1 (Bates No. 8).

With respect to Mr. Shepard’s file, Respondent testified that he was unable to contact

Mr. Thomas and decided instead to send the file to Mr. Shepard at the address reflected on

Mr. Shepard’s disciplinary complaint. Tr. 110-14. Respondent testified that he did not return

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Mr. Shepard’s records to him until February 2009 because, due to his physical limitations

resulting from a stroke he suffered in 1995, he needed help packaging and sending them. Tr. 63,

112-14. Respondent sent the files to Mr. Shepard on February 10, 2009 (BX 7 at 3, ¶ 1, and 5, ¶

8), after receiving Bar Counsel’s January 28, 2009, letter. BX 6; BX 7 (Bates Nos. 50-51). In

light of his ability to return Mr. Shepard’s files relatively promptly after receiving Bar Counsel’s

inquiry, we reject Respondent’s explanation that his need for physical assistance was the reason

for his three-month delay in returning Mr. Shepard’s files. We find that his contrary testimony is

not credible due to his generally poor and inconsistent recollection regarding these events and the

lack of any corroborating evidence.

F. Bar Counsel’s Subpoena of Respondent’s Laptop

21. In connection with its investigation of Mr. Shepard’s complaint, Bar Counsel

subsequently asked Respondent to voluntarily provide access to his computer to a company that

would make a mirror image of its hard drive. BX 11 (Bates No. 107). Respondent refused to

voluntarily cooperate with Bar Counsel’s request to create a mirror image of his computer’s hard

drive, citing privacy concerns. BX 12 (Bates Nos. 109-110). Consequently, by letter of June

24, 2009, Bar Counsel served Respondent with a subpoena for “[t]he hard drive of any computer

[he had] used since January 2007.” BX 13 (Bates Nos. 112-113). Respondent testified that he

used only one computer during the relevant time period, a laptop. Tr. at 132. In that letter, Bar

Counsel informed Respondent of the steps the computer company and Bar Counsel would take to

maintain the confidentiality of any information not relevant to the investigation of Mr. Shepard’s

complaint. Id. (Bates No. 112).

22. On or about July 17, 2009, Respondent moved to quash the subpoena, arguing

that Bar Counsel lacked jurisdiction to serve it, and that the subpoena violated his rights under

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the Fourth Amendment to the U.S. Constitution and the Health Information Privacy and

Portability Act. Motion to Quash Subpoena, Dismiss, and for Protective Order at 3-4. In the

alternative, Respondent sought a protective order to guard information on his laptop not relevant

to Bar Counsel’s investigation. Id. at 4-5. Respondent’s motion also included a request to

“summarily dismiss[]” the disciplinary complaint, and made allegations of professional

misconduct against Bar Counsel. Id. at 5-6.

23. Bar Counsel opposed the motion to quash and, on June 18, 2010, a different Ad

Hoc Hearing Committee (the “Motion Hearing Committee”) granted in part and denied in part

Respondent’s motion. BX 17 (Bates Nos. 187-91). The Motion Hearing Committee denied

Respondent’s motion to dismiss the complaint. Id. (Bates No. 191, ¶ 8). It ordered Respondent

to “identify all hard drives used by him between April 2007 and December 2008.” Id. (Bates No.

190, ¶ 1). The Motion Hearing Committee further ordered Bar Counsel to “engage an outside

contractor to create a mirror image of all . . . hard drives” utilized by Respondent during that

time period. Id. (Bates No. 190, ¶ 2). In addition, the Motion Hearing Committee ordered the

parties to agree on a set of search terms that the contractor would use to examine the relevant

hard drive(s) and that were “reasonably calculated to capture all or substantially all files relevant

to Bar Counsel’s investigation.” Id. (Bates No. 190, ¶ 3). Finally, the Motion Hearing

Committee established a process that would allow Respondent to examine and log the documents

culled by the contractor, and then allow Bar Counsel to challenge Respondent’s conclusions

regarding the relevance of those documents to Bar Counsel’s investigation. Id. (Bates Nos. 190-

91, ¶¶ 4-6).

24. On or about July 2, 2010, Respondent moved for reconsideration of the Motion

Hearing Committee’s order. BX 18.

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25. On August 5, 2010, the Motion Hearing Committee issued an order granting in

part and denying in part Respondent’s motion for reconsideration. BX 19. The Motion Hearing

Committee denied Respondent’s motion to dismiss the complaint and to disqualify Bar Counsel.

Id. (Bates No. 209). Upon reconsideration, however, the Motion Hearing Committee granted

Respondent’s motion to quash the subpoena compelling production of his laptop computer. Id.

(Bates Nos. 208-09). The Motion Hearing Committee found that Respondent had allowed a

computer company known as “Geeks on Call” to examine and attempt to repair the hard drive of

his laptop and, when “Geeks on Call” was unable to do so, Respondent authorized the company

to destroy it. Id. (Bates No. 208). Thus, the Motion Committee found, “there is no basis for

compelling an object that no longer exists” and it granted the motion to quash the subpoena on

mootness grounds. Id. (Bates No. 208-09). The Motion Hearing Committee further noted that,

“it appears . . . Respondent improperly may have interfered with Bar Counsel’s investigation by

allowing evidence material to the subject of a pending subpoena to be destroyed.” Id. (Bates No.

208).

26. At the hearing, Respondent confirmed that he had provided his laptop computer to

“Geeks on Call” while his motion to quash the subpoena for the laptop was pending before the

Motion Hearing Committee. Tr. at 132-36, 140-41. The owner of “Geeks on Call” confirmed

that Respondent “turned over his laptop to [G]eeks on Call on February 9, 2010.” BX 20.

Respondent knew that his laptop was under subpoena when he gave it to “Geeks on Call.” Tr. at

140-41. Only after the Motion Hearing Committee denied Respondent’s motion to quash the

subpoena did Respondent notify the Motion Hearing Committee that he no longer had possession

of the laptop. Tr. at 133-34. Respondent testified that he provided his laptop to “Geeks on Call”

to repair the hard drive, but that the company informed him it could not repair the computer. Tr.

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at 134-36. Respondent purchased another computer from the company in February 2010 without

requesting return of his laptop. Tr. at 134-37, 141. Respondent did not request that “Geeks on

Call” return the laptop to him until after the Motion Hearing Committee issued its June 18, 2010,

order denying his motion to quash the subpoena for the computer. Tr. at 137, 141-42.

Respondent testified that “Geeks on Call” had destroyed his old laptop by the time he requested

its return. Tr. at 137.

G. Respondent’s False Affidavit

27. As noted above, in March, 2008, the Court of Appeals suspended Respondent for

18 months in an unrelated case. In connection with that matter, on March 31, 2008, Respondent

filed an affidavit with the Court (BX 9) in which he falsely asserted that he “currently [had] no

clients, no client papers or property, no active matters . . . .” This was a false statement because

Mr. Shepard was Respondent’s client at the time (he did not discharge Respondent until

November 2008), and Respondent had Mr. Shepard’s medical records from April 2007 until

February 2009. See FF ¶¶ 14, 17, 20.

III. Conclusions of Law

In light of the clear and convincing evidence presented in this case,6 the Hearing

Committee finds that Respondent violated D.C. Bar R. XI, § 2(b)(3) and D.C. Rules of

Professional Conduct 1.15(a), 1.15(d), 1.16(d), 3.3(a), 5.5(a), 8.1(a), 8.4(c), and 8.4(d) in

connection with his representation of Mr. Shepard during a time when his license to practice law

was restricted or suspended. The Hearing Committee further finds by clear and convincing

evidence that Respondent violated D.C. Rules of Professional Conduct 3.4(a), 3.4(c), 8.4(b), and

6 Clear and convincing evidence means “more than a preponderance of the evidence; [it] means evidence that will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established.” In re Cater, 887 A.2d 1, 24 (D.C. 2005) (quotations, citations omitted).

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8.4(d) when he disregarded Bar Counsel’s subpoena compelling production of his laptop, and

instead provided the laptop to “Geeks on Call,” and authorized “Geeks on Call” to destroy it

before the Motion Hearing Committee ruled on his motion to quash the subpoena. The Hearing

Committee does not find a violation of D.C. Bar R. XI, § 2(b)(3) based on Respondent’s failure

to comply with the Hearing Committee order denying his motion to quash because § 2(b)(3)

applies to Board orders, not Hearing Committee orders, and, even if it applied to Hearing

Committee orders, Respondent could not produce his computer because it had been destroyed.

A. Respondent had an Attorney-Client Relationship with Mr. Shepard.

Respondent argues that Mr. Shepard was not his client. We disagree and find that Mr.

Shepard was Respondent’s client. The existence of an attorney-client relationship depends on

the circumstances. See In re Lieber, 442 A.2d 153, 156 (D.C. 1982). “It is well established that

neither a written agreement nor the payment of fees is necessary to create an attorney-client

relationship.” Id. A client’s perception that an attorney is his counsel is a consideration in

determining whether an attorney-client relationship existed. Id. Here, Mr. Shepard believed that

Respondent was his lawyer. See BX 1 (Bates No. 2) (Mr. Shepard’s Bar complaint, asserting

that he retained Respondent to represent him in a medical malpractice lawsuit); id. (Bates No. 8)

(Mr. Shepard’s letter terminating Respondent’s representation). Moreover, by his own

testimony, Respondent provided legal advice to Mr. Shepard. See FF ¶¶ 4-5 (Respondent

provided legal advice to Mr. Shepard regarding the applicable statute of limitations, the potential

for tort damages, and the applicable standard of care for a medical malpractice claim in the

District of Columbia). D.C. Court of Appeals Rule 49(b)(2) defines the “practice of law” as “the

provision of legal advice or services where there is a client relationship of trust or reliance.”

18

B. Respondent Recklessly Misappropriated Funds in Violation of Rule 1.15(a), Failed to Treat Unearned Fees and Unincurred Costs as Property of His Client in Violation of Rule 1.15(d), and Failed to Timely Return His Client’s Papers in Violation of Rule 1.16(d).

Rule 1.15(a) states, inter alia: “A lawyer shall hold property of clients or third persons

that is in the lawyer’s possession in connection with a representation separate from the lawyer’s

own property. Funds shall be kept in a separate account . . . .”7 In addition, Rule 1.15(a)

requires a lawyer to keep “[c]omplete records of such account funds” and safeguard such records

“for a period of five years after termination of the representation.”

The pertinent part of Rule 1.15(d)8 states: “Advances of unearned fees and unincurred

costs shall be treated as property of the client pursuant to paragraph (a) until earned or incurred

unless the client gives informed consent to a different arrangement.” In addition, upon

termination of any representation, Rule 1.16(d) requires a lawyer to timely return “papers and

property to which the client is entitled.”

In order to establish misappropriation in violation of Rule 1.15(a), Bar Counsel must

prove that Respondent engaged in “unauthorized use of client’s funds entrusted to [the lawyer],

including not only stealing but also unauthorized temporary use for the lawyer’s own purpose,

whether or not he derives any personal gain or benefit therefrom.” In re Anderson, 778 A.2d

330, 335 (D.C. 2001) (“Anderson I”) (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C.

1983)). “Misappropriation . . . is essentially a per se offense” and, therefore, Bar Counsel need

not prove improper intent. See Anderson I, 778 A.2d at 335 (quoting In re Micheel, 610 A.2d

231, 233 (D.C. 1992)).

7 This was the version of Rule 1.15(a) in effect at the time Bar Counsel filed its Second Amended Specification of Charges. The D.C. Court of Appeals revised Rule 1.15(a) in August 2010; the revision does not affect the charges in Count One. 8 Following the revision of Rule 1.15 in August 2010, this language was moved to Rule 1.15(e).

19

Respondent has offered inconsistent testimony regarding his receipt of funds from Mr.

Shepard. He has denied receiving any funds from Mr. Shepard, (FF ¶ 7), then later

acknowledged receiving the funds, (id.), but could not recall depositing them into his personal

checking account, (Tr. 90-91), and claimed that he paid the funds to Dr. Heron for his assistance

in evaluating Mr. Shepard’s claim of medical malpractice. FF ¶ 9.

The clear and convincing evidence presented establishes that Respondent accepted a

check for $1,500 from Mr. Shepard dated April 22, 2007, and made out to Respondent, with the

notation “MAY–JULY 2007 MONTHLY LEGAL PYMTS PER AGRMENT” on the memo

line. FF ¶ 6. We conclude, therefore, that Mr. Shepard intended the check as an advance

payment to Respondent for future legal fees or expenses incurred by Respondent in connection

with the representation, and, under Rule 1.15(d), the money should have been treated by

Respondent as Mr. Shepard’s property. Shortly thereafter, Respondent deposited that check into

his personal checking account; the account was not a lawyer’s trust, or IOLTA, account. FF ¶ 8.

Respondent kept no records related to the money he received from Mr. Shepard. FF ¶ 6.

Respondent did not use that money to pay his legal fee, or Dr. Heron or any anyone else

to evaluate the viability of Mr. Shepard’s medical malpractice claim (FF ¶ 11-13); to the

contrary, Respondent’s bank records evidence a variety of small-denomination withdrawals from

the account into which he deposited Mr. Shepard’s funds, ultimately resulting in a negative

balance less than three weeks after the deposit. FF ¶ 11. Respondent’s bank statements for the

same account between April 17 and December 14, 2007, do not show any $1,500 withdrawal, or

any check written for that amount. FF ¶ 11. Moreover, the bank statements show that

Respondent’s account was overdrawn on multiple occasions, and that it held less than $1,500 for

substantial periods of time. See FF ¶ 11. These facts indicate that Respondent used client funds

20

for purposes other than expenses incurred on behalf of his client. Therefore, under Rule 1.15(a),

Respondent misappropriated Mr. Shepard’s money when his account balance fell below the

$1,500 held in trust on Mr. Shepard’s behalf.

Having found that Bar Counsel established misappropriation, we must determine whether

such misappropriation was intentional, reckless or negligent. See Anderson I, 778 A.2d at 332;

see also In re Hewett, 11 A.3d 279, 285 (D.C. 2011). In determining Respondent’s intent, it is

appropriate to look at the “entire mosaic” of his conduct. See In re Ukwu, 926 A.2d 1106, 1116

(D.C. 2007) (“Intent must ordinarily be established by circumstantial evidence, and in assessing

intent, the court must consider the entire context . . . . [I]t is generally in the interests of justice

that the trier of fact ‘consider the entire mosaic.’”) (citation omitted); accord In re Anderson, 979

A.2d 1206, 1209 (D.C. 2009) (per curiam) (“Anderson II”) (adopted and appended Board report).

Misappropriation is reckless if a lawyer’s handling of fund “reveals an intent to treat the funds as

[his] own or a conscious indifference to the consequences of his behavior for the security of the

funds.” Anderson I, 778 A.2d at 339 (citations omitted). A “hallmark” of recklessness is the

“total disregard of the status of accounts into which entrusted funds were placed, resulting in a

repeated overdraft condition.” Id. at 338 (citations omitted).

We find that Respondent committed reckless misappropriation because the totality of his

conduct—commingling Mr. Shepard’s funds with his own, failing to account for Mr. Shepard’s

funds in the account with the result that he spent money that he held in trust for Mr. Shepard,

failing to maintain a balance in the account equal to the amount owed to Mr. Shepard for

substantial periods of time, failing to maintain a positive balance in the account for many days,

and refusing Mr. Shepard’s request to return his money—“reveal[s] an unacceptable disregard

for the safety and welfare of entrusted funds . . . .” Anderson I, 778 A.2d at 338; see also

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Micheel, 610 A.2d at 235-36 (respondent committed reckless misappropriation where he

commingled personal and client funds and allowed the account to become overdrawn); In re

Pels, 665 A.2d 388, 393 (D.C. 1995) (respondent committed reckless misappropriation when he

commingled personal and client funds, and wrote checks for personal and family expenses that

caused his account balance to fall below the amount held in trust). In finding that Respondent’s

conduct was reckless, we also consider Respondent’s inability to explain satisfactorily the

disposition of Mr. Shepard’s funds. See FF ¶¶ 12-13; In re Thompson, 579 A.2d 218, 221 (D.C.

1990) (“[T]he Board may weigh, together with all of the other evidence, an attorney’s

explanation for—or conversely inability to explain satisfactorily—the use of a client’s funds in

deciding whether Bar Counsel has met its burden of proving dishonest misappropriation by clear

and convincing evidence.”); see also In re Berkowitz, 801 A.2d 51, 57 (D.C. 2002) (per curiam)

(appending Board Report); Anderson I, 778 A.2d at 336-337.

The same facts that establish Respondent’s misappropriation of funds in violation of Rule

1.15(a) also establish Respondent’s failure to properly treat Mr. Shepard’s funds as client

property, in violation of Rule 1.15(d), and to promptly return such funds after Mr. Shepard

terminated his legal consultation with Respondent, in violation of Rule 1.16(d). In addition to

possessing his client’s money, Respondent admits receiving a large volume of Mr. Shepard’s

medical records. FF ¶¶ 5, 8, 14. Respondent further admits that he failed to return Mr.

Shepard’s medical records to him after Mr. Shepard requested their return and, instead, only

returned the records to Mr. Shepard several months later, after Bar Counsel directed him to do

so. FF ¶ 19.

We conclude, therefore, that Respondent engaged in misappropriation of Mr. Shepard’s

money which was, at least, reckless. This conduct violates Rules 1.15(a) and (d). In addition,

22

Respondent failed to return Mr. Shepard’s medical records to him for several months after Mr.

Shepard terminated his legal consultation with Respondent and requested the return of such

records in violation of Rule 1.16(d).

C. Respondent Knowingly Made a False Statement of Fact to the Court in Violation of Rule 3.3(a)(1) When He Filed a False Affidavit Following Suspension of His License in March 2008 and Knowingly Made False Statements to Bar Counsel in Connection with a Disciplinary Matter in Violation of Rule 8.1(a).

Bar Counsel alleges that Respondent violated Rule 3.3(a)(1) when he filed a false

affidavit with the Court following the March 2008 suspension of his license to practice law in the

District of Columbia. Bar Counsel further contends that Respondent violated Rule 8.1(a) by

knowingly making false statements to Bar Counsel in connection with Bar Counsel’s

investigation of Mr. Shepard’s complaint. These violations stem from Respondent’s sworn

statement to the Court on March 31, 2008, that he “ha[d] no clients, no client papers or property”

at the time he filed the statement. FF ¶ 27. Respondent denies these allegations, arguing that he

did not have an attorney-client relationship with Mr. Shepard, his consultations with Mr. Shepard

regarding potential legal claims in the District of Columbia did not constitute the practice of law,

and, consequently, the funds and papers he received from Mr. Shepard were not client property.

FF ¶ 5.

Rule 3.3(a)(1) states that “[a] lawyer shall not knowingly . . . make a false statement of

fact or law to a tribunal.” Similarly, Rule 8.1(a) provides that a lawyer shall not “knowingly

make a false statement of fact” in connection with a disciplinary matter. Both rules require Bar

Counsel to prove by clear and convincing evidence that Respondent “knowingly” made a false

statement. The Terminology section of the Rules defines “knowingly” as “actual knowledge of

the fact in question” which “may be inferred from the circumstances.” Rule 1.0(f).

23

To prove a Rule 3.3(a) violation, Bar Counsel must prove that Respondent made a false

statement to a “tribunal,” which “denotes a court, . . . or other body acting in an adjudicative

capacity.” Id. 1.0(n). D.C. Bar R. XI, § 14 requires a lawyer whose license has been suspended

to file an affidavit with the Board and the Court within ten days of the effective date of an order

of disbarment or suspension. Indeed, for purposes of calculating eligibility for reinstatement, the

period of suspension does not begin to run until the lawyer has filed a compliant § 14(g)

affidavit. D.C. Bar R. XI, § 16(c) (if a suspended attorney “has failed in any respect to comply

with section 14, the Board shall so notify the Court, and the Court shall thereafter enter an

appropriate order”). As the Board “acts in an adjudicative capacity” in determining compliance

with § 14, which necessarily includes consideration of a § 14(g) affidavit, we find that

Respondent submitted his § 14(g) affidavit to two “tribunals,” the Court and the Board. See In re

Cleaver-Bascombe, 892 A.2d 396, 403-04 (D.C. 2006) (respondent made false statements to a

tribunal when she submitted false Criminal Justice Act vouchers to the Superior Court). We

further find that Respondent submitted his affidavit in connection with a disciplinary matter

because all suspended or disbarred attorneys are required to file a § 14(g) affidavit.

Here, Respondent filed an affidavit with the Board and the Court on March 31, 2008,

stating, among other things, that he had “no clients, [and] no client papers or property.” FF ¶ 27.

That affidavit was false because, as discussed above, Mr. Shepard was Respondent’s client from

2007 until Mr. Shepard terminated the relationship in November 2008, and Respondent had Mr.

Shepard’s medical records from 2007 until February 2009. Id. Throughout these proceedings,

Respondent has offered contradictory statements regarding his relationship to Mr. Shepard. At

most, he has acknowledged that he and Mr. Shepard “had a legal consultation” and that he

reviewed Mr. Shepard’s records and consulted with a medical expert in order to advise Mr.

24

Shepard as to whether he might have a legal claim stemming from a medical procedure. FF ¶¶

4-6. Respondent claims that he did these things in order to assist Mr. Shepard in finding another

attorney, though the record is utterly devoid of evidence that Respondent ever consulted another

attorney regarding Mr. Shepard. FF ¶ 5. In light of the clear and convincing evidence to the

contrary, including Respondent’s own admissions, Respondent’s assertions that Mr. Shepard was

never his client simply are not credible and he knew them to be false when he made them.

Based on the clear and convincing evidence presented, we find that Respondent violated

Rule 3.3(a)(1) by knowingly making a false statement of material fact to a tribunal. See, e.g., In

re Uchendu, 812 A.2d 933 (D.C. 2002) (attorney violated Rule 3.3(a) by signing clients’ names

on documents that were filed in court). Because Respondent made the same false statement in

connection with a disciplinary matter, his conduct also violated Rule 8.1(a). See Comment [1] to

Rule 8.1 (“[I]t is a separate professional offense for a lawyer knowingly to make a

misrepresentation or omission in connection with a disciplinary investigation of the lawyer’s

own conduct.”).

D. Respondent Knowingly Disobeyed His Obligation to Notify Bar Counsel Prior to His Representation of Mr. Shepard, in Violation of D.C. Bar R. XI, § 2(b)(3) and Practiced Law During a Period When He Was Not Authorized to Do So, in Violation of Rule 5.5.

On March 15, 2006, in connection with an unrelated disciplinary matter, the Board

ordered Respondent to notify Bar Counsel 90 days prior to practicing law. FF ¶ 2. In addition to

the notice requirement, the Board ordered Respondent to submit medical documentation of his

fitness to practice. Id. That order remained in effect until March 20, 2008, when the Court

suspended Respondent’s license to practice law in the District of Columbia for 18 months. In re

Mayers, 943 A.2d at 1172.

25

Rule 5.5(a) prohibits an attorney from “practic[ing] law in a jurisdiction where doing so

violates the regulation of the legal profession in that jurisdiction.” Thus, an attorney whose

license to practice has been limited or suspended in the District of Columbia and continues to

represent a client violates Rule 5.5(a). See, e.g., In re Schoeneman, 891 A.2d 279, 280-81 (D.C.

2006) (per curiam) (Board Report appended) (attorney’s actions counseling clients while under

suspension was unauthorized practice of law).

Between March 15, 2006, and March 20, 2008, Respondent’s license to practice law was

contingent on 90-day prior notice to Bar Counsel and medical documentation of his fitness to

practice. FF ¶ 2. Following the Court’s order of March 20, 2008, Respondent’s license was

suspended. FF ¶ 3. During the period beginning no later than April, 2007 and continuing

through November 2008, Respondent consulted with Mr. Shepard for the purpose of providing

him legal advice regarding the potential for a medical malpractice claim in the District of

Columbia. FF ¶¶ 4-5, 17. As part of this consultation, Respondent reviewed a large volume of

Mr. Shepard’s medical records, consulted with a medical expert, and accepted a check from Mr.

Shepard in the amount of $1,500. FF ¶ 5-6. Respondent acknowledges that he never notified

Bar Counsel or submitted medical documentation of his fitness to practice law in advance of his

consultation with Mr. Shepard. FF ¶ 4. Instead, Respondent argues that his interactions with

Mr. Shepard did not constitute the practice of law.

Based on the clear and convincing evidence presented, and for the same reasons set forth

in section III.A., supra, we find that Respondent engaged in the practice of law on behalf of Mr.

Shepard between April 2007 and March 2008 without prior notification to Bar Counsel or

medical documentation of his fitness to do so, both of which were in violation of the Board’s

order. Respondent’s conduct therefore violates D.C. Bar R. XI, § 2(b)(3) (failure to comply with

26

an order of the Board or Court).9 Likewise, we find that Respondent continued to engage in the

practice of law on behalf of Mr. Shepard following suspension of his license in March 2008.

Respondent’s practice of law on behalf of Mr. Shepard between March 2008 and November

2008 violated Rule 5.5(a) (practicing law in violation of the regulation of the legal profession).

E. Respondent Obstructed Bar Counsel’s Access to Evidence and Knowingly Disobeyed His Obligation to Comply with the Rules of a Tribunal When He Allowed His Laptop to be Destroyed While Under Subpoena from Bar Counsel; Such Acts Violated Rule 3.4.

Rule 3.4(a) states, in pertinent part,

A lawyer shall not: (a) obstruct another party’s access to evidence or alter, destroy, or conceal 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.

A respondent violates Rule 3.4(a) when the respondent knows that preventing access to

documents would impede pending investigations. See, e.g., In re Abrahamson, Bar Docket No.

201-01 at 18 (BPR May 20, 2004), recommendation adopted, 852 A.2d 949, 950 (D.C. 2004)

(per curiam). “The term ‘evidence’ includes any document or physical object that the lawyer

reasonably should know may be the subject of discovery or subpoena in any pending or

imminent litigation.” Comment [3] to Rule 3.4(a) (citing D.C. Bar Legal Ethics Committee

Opinion No. 119 (test is whether document destruction is directed at concrete litigation that is

either pending or almost certain to be filed)). Here, Respondent failed to produce his computer

to Bar Counsel pursuant to subpoena. FF ¶ 21. Instead, he filed a motion to quash the

subpoena and ignored his obligation to protect the computer pending resolution of his motion.

FF 22. While his motion to quash was pending, Respondent provided his computer to “Geeks on

9We do not find that Respondent violated Rule 5.5(a) when he practiced law without giving prior notice to Bar Counsel as required by the Board’s order because there is some question as to whether practicing in violation of the Board order constitutes practicing law in violation of the regulation of the legal profession in the District of Columbia. See Rule 5.5(a).

27

Call” to repair a technical problem. When the problem could not be fixed, however, he not only

failed to instruct “Geeks on Call” to preserve the laptop, but authorized them to destroy it.

FF ¶¶ 25-26. We find that Respondent’s conduct violated Rule 3.4(a).

Similarly, Rule 3.4(c) provides, in pertinent part, that “[a] lawyer shall not knowingly

disobey an obligation under the rules of a tribunal . . . .” The term “knowingly” “denotes actual

knowledge of the fact in question,” which “may be inferred from the circumstances.” Rule

1.0(f); see also In re Spitzer, 845 A.2d 1137, 1138 n.3 (D.C. 2004) (per curiam) (Respondent

could not “knowingly” violate Rule 8.1(b) without actual knowledge of a Bar Counsel

investigation).

Bar Counsel does not specifically identify the particular obligation imposed by the rules

of a tribunal that Respondent allegedly breached, and instead argues that, “[f]or the same reasons

as stated in the immediately preceding section[, regarding Rule 3.4(a),] Respondent also violated

Rule 3.4(c).” Bar Counsel’s Brief at 32. Thus, it appears that Bar Counsel is arguing that

Respondent violated Rule 3.4(c) when he failed to produce his computer and allowed it to be

destroyed by a third party while it was under subpoena.

There are no original discipline cases in the District of Columbia that discuss whether a

lawyer who fails to produce and/or preserve evidence has violated Rule 3.4(c). In In re

Hermina, 907 A.2d 790 (D.C. 2006) (per curiam) (Board Report appended), however, the Court

imposed reciprocal discipline for the violation of another state’s identical version of Rule 3.4(c),

for inter alia¸ failing to cooperate in discovery. Id. at 794 n.6, 795.

Here, the face of Bar Counsel’s subpoena put Respondent on clear and unequivocal

notice that “failure of any person without adequate excuse to obey this subpoena as served may

be deemed contempt of the District of Columbia Court of Appeals’ rules governing the Bar.”

28

FF ¶ 21; BX 13 (Bates No. 113). As such, we find that Bar Counsel has proven by clear and

convincing evidence that Respondent had an obligation to produce his computer to Bar Counsel

in response to Bar Counsel’s subpoena, and that he violated Rule 3.4(c) by allowing it to be

destroyed while under subpoena.

F. Respondent Engaged in Criminal Conduct Involving Dishonesty and that Seriously Interferes with the Administration of Justice in Both His Dealings with Mr. Shepard and His Interactions with the Court and Bar Counsel.

Bar Counsel alleges that Respondent’s conduct described above also violated Rules

8.4(b), (c) and (d).

Rule 8.4(b) states that it is professional misconduct for an attorney to “commit a criminal

act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness.” In order to

establish a violation of this provision, Bar Counsel must establish the elements of a criminal

offense by clear and convincing evidence. In re Slattery, 767 A.2d 203, 212-13 (D.C. 2001).

The particular provision of law that forms the basis for the Rule 8.4(b) violation advanced by Bar

Counsel is D.C. Code § 22-723(a), which prohibits tampering with physical evidence. Such

unlawful tampering occurs when a person, “knowing or having reason to believe an official

proceeding has begun or . . . is likely to be instituted, . . . alters, destroys, mutilates, conceals, or

removes a record, document, or other object, with the intent to impair its integrity or its

availability for use in the official proceeding.” D.C. Code § 22-723(a). District of Columbia law

further defines an “official proceeding” as “any trial, hearing, investigation or other proceeding

in a court of the District of Columbia or conducted by . . . an agency or department of the District

of Columbia government . . . .” D.C. Code § 22-721(4). See Timberlake v. United States, 758

A.2d 978, 981 (D.C. 2000). The Board on Professional Responsibility is an arm of the District

of Columbia Court of Appeals, which is authorized and operates in accordance with D.C. Bar R.

29

XI. See D.C. Code § 11-2501(a); Simons v. Bellinger, 643 F.2d 774 (D.C. Cir. 1980). Thus, an

investigation or hearing conducted within the Court’s disciplinary system constitutes an official

proceeding under District of Columbia law. Tampering with physical evidence in the context of

a disciplinary proceeding, therefore, violates District of Columbia law if the person tampering

knows or has reason to believe that such a proceeding has begun or is likely to be initiated.

Rule 8.4(c) prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud,

deceit, or misrepresentation.” Under Rule 8.4(c), the term “dishonesty” includes “conduct

evincing ‘a lack of honesty . . . of fairness and straightforwardness.’” In re Shorter, 570 A.2d

760, 767-68 (D.C. 1990) (per curiam).

Rule 8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct

that seriously interferes with the administration of justice.” This Court has described Rule 8.4(d)

as “a general rule that [was] purposely broad to encompass derelictions of attorney conduct

considered reprehensible to the practice of law.” In re Hopkins, 677 A.2d 55, 59 (D.C. 1996)

(quoting In re Alexander, 496 A.2d 244, 255 (D.C. 1985)); see also Comment [2] to Rule 8.4

(“Paragraph (d) is to be interpreted flexibly and includes any improper behavior of an analogous

nature”).10

In order to violate Rule 8.4(d), the lawyer’s conduct must (1) be “improper”; (2) “bear

directly upon the judicial process . . . with respect to an identifiable case or tribunal”; and (3)

“taint the judicial process in more than a de minimis way.” Hopkins, 677 A.2d at 60-61; accord

In re Uchendu, 812 A.2d 933, 941 (D.C. 2002). The attorney’s conduct need not actually

10 Comment [2] to Rule 8.4(d) also states: “Paragraph (d)’s prohibition of conduct that ‘seriously interferes with the administration of justice’ includes conduct proscribed by the previous Code of Professional Responsibility under DR 1-102(A)(5) as ‘prejudicial to the administration of justice.’”

30

interfere with judicial decision-making, but rather only “potentially impact upon the process to a

serious and adverse degree.” Hopkins, 677 A.2d at 61 (emphasis added).

Here, on June 24, 2009, Bar Counsel issued a subpoena for the hard drive on any

computer Respondent had used since January 2007, and Respondent moved to quash the

subpoena on July 17, 2009. Respondent used only one computer during the relevant time period,

a laptop. Regardless, on February 9, 2010, while his motion to quash was pending, Respondent

relinquished control of that laptop, to “Geeks on Call,” despite knowing that the computer was

under subpoena by Bar Counsel in the context of its investigation of Mr. Shepard’s complaint.

FF ¶ 26. He later allowed “Geeks on Call” to destroy his laptop in utter disregard of his

obligation to preserve it while it was under subpoena. FF ¶¶ 25-26. As a former federal

prosecutor, Respondent should have had an even greater understanding of the nature of a

subpoena and its importance to judicial process than the average attorney. Thus, upon

consideration of the facts presented here and the applicable law, we find by clear and convincing

evidence that Respondent’s actions vis-à-vis his laptop computer reflect adversely on his

honesty, and seriously interfered with the administration of justice by hamstringing Bar

Counsel’s investigation of Mr. Shepard’s complaint. See In re Godette, 919 A.2d 1157, 1167

(D.C. 2007) (failing to respond to Bar Counsel’s inquiries seriously interferes with the

administration of justice). We further find that such actions violate D.C. Code § 22-723(a),

which prohibits tampering with physical evidence in the context of an official proceeding when

Respondent knew that Bar Counsel had initiated such a proceeding.

In addition, the clear and convincing evidence in this case demonstrates that Respondent

misrepresented his ability to practice law in the District of Columbia when he accepted a $1,500

check and a large volume of medical records from Mr. Shepard in order to assess the strength of

31

Mr. Shepard’s potential tort claims. FF ¶ 4. Compounding this misconduct, we find that

Respondent submitted a false affidavit to the Court stating that he had no clients or client

documents after he accepted these funds and documents from Mr. Shepard for the purpose of

assessing such claims. FF ¶ 27. Consequently, we find that Respondent engaged in conduct

involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) in his

interactions with Mr. Shepard and the Court.

In sum, Respondent engaged in conduct that seriously interfered with the administration

of justice under Rule 8.4(d) when he submitted a false affidavit to the Court and later failed to

comply with Bar Counsel’s subpoena of his laptop. Respondent’s failure to preserve his laptop,

and his decision to allow “Geeks on Call” to destroy it, while it was under subpoena by Bar

Counsel, also amounts to criminal conduct that reflects adversely on his honesty, trustworthiness,

or fitness under Rule 8.4(b). He further engaged in conduct involving dishonesty, fraud, deceit

or misrepresentation under Rule 8.4(c) in both his dealings with Mr. Shepard and his interactions

with the Court and Bar Counsel. Thus we find that Respondent’s actions violated Rules 8.4(b),

(c), and (d).

G. Respondent’s Failure to Produce His Computer in Response to the Motion Hearing Committee’s Initial Order on the Motion to Quash Did Not Violate D.C. Bar R. XI, § 2(b)(3).

Bar Counsel alleges that Respondent violated D.C. Bar Rule XI, § 2(b)(3) when he failed

to comply with the order denying his motion to quash. We reject Bar Counsel’s argument for

two reasons: 1) § 2(b)(3) provides that discipline may be imposed for the violation of a Board

order (Bar Counsel cites no authority to support the argument that discipline may be imposed for

the violation of a Hearting Committee order) and 2) Respondent could not comply with the

initial order on the motion to quash because the computer had been destroyed by the time the

32

Motion Hearing Committee issued its ruling. As discussed above, however, Respondent violated

other Rules when he allowed the computer to be destroyed while under subpoena.

H. Respondent’s Motions to Dismiss

Pursuant to Board Rule 7.16(a) we now turn to Respondent’s five motions to dismiss.

Respondent alleged a variety of bases in support of his various requests to dismiss the charges

against him. The Hearing Committee recommends that the Board deny each of the motions to

dismiss for the reasons discussed herein.

1. Respondent’s First Motion to Dismiss

Respondent moved to dismiss the Specification of Charges on December 30, 2010, on the

grounds that: (a) the Specification of Charges failed to distinctly state the grounds upon which it

is based;11 (b) Bar Counsel violated his due process right to a speedy trial; and (c) the

prosecution was barred by laches. Respondent’s Exculpatory Statement and Motion to Dismiss

at 3-6, 7-8 (Dec. 10, 2010). Respondent cites Strunk v. United States, 412 U.S. 434, 439-40

(1973) in support of his constitutional “right to a speedy trial.” There is no authority to support a

“right” to a speedy trial in disciplinary proceedings. See In re Sibley, 990 A.2d 483, 490 n.6

(D.C. 2010) (The Sixth Amendment right to a speedy trial does not apply to attorney disciplinary

proceedings) (internal citations omitted); In re Williams, 513 A.2d 793 (D.C. 1986). Indeed,

11The Hearing Committee addressed the first basis for Respondent’s first motion to dismiss in its March 21, 2011, order construing the request as a motion for bill of particulars and denying the motion on the grounds that the Specification of Charges clearly set forth the facts supporting the alleged Rule violations. See Order, In re Mayers, Bar Docket No. 515-08 at 2-3 (HC Mar. 21, 2011). On reconsideration, the Hearing Committee found that the Specification of Charges failed to specify the level of intent in the misappropriation alleged in violation of Rule 1.15(a), and the criminal statute at issue in the alleged violation of Rule 8.4(b). The Hearing Committee vacated the part of the March 21, 2011, order denying the bill of particulars, and ordered Bar Counsel to file an Amended Specification of Charges. See Amended Order, In re Mayers, Bar Docket No. 515-08 at 2-3 (HC Apr. 8, 2011). In light of the additional detail contained in the Amended Specification of Charges, we recommend the motion to dismiss be denied because Respondent received notice of the charges against him.

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Respondent acknowledges that there is no time limit within which Bar Counsel must initiate

disciplinary proceedings following a complaint. See Respondent’s Exculpatory Statement and

Motion to Dismiss at 3 (Dec. 10, 2010). Respondent also cites no support for the assertion that

he may claim an equitable defense such as laches to the filing of disciplinary action against him.

Indeed, D.C. Bar Rule XI, § 1(c), makes clear that there is no statute of limitations applicable to

disciplinary proceedings and instead provides that “[d]isciplinary proceedings against an

attorney shall not be subject to any period of limitation.” Id. (emphasis added). Thus, the Court

of Appeals has held that “undue delay in prosecution is not in itself a proper ground for dismissal

of charges of attorney misconduct.” Williams, 513 A.2d at 796. There, the court recognized that

“[a] delay coupled with actual prejudice could result in a due process violation,” that could

compel the court to conclude that misconduct had not been shown. Id. at 797. Even if

Respondent could show an undue delay by Bar Counsel in bringing the instant charges, there is

no showing of actual prejudice here. Indeed Respondent has made no specific claim that any

alleged delay prejudiced his defense in any way. For these reasons we recommend that the

Board deny Respondent’s first motion to dismiss.

2. Respondent’s Second Motion to Dismiss

Respondent later moved for default and/or to dismiss on March 14, 2011, alleging that:

(a) Bar Counsel defaulted on the first motion to dismiss by filing an untimely opposition; and,

(b) the Motion Hearing Committee that considered the motion to quash had “tainted” the

disciplinary proceedings by suggesting that Bar Counsel include additional violations in Count II

of the Specification of Charges. Respondent’s Response to Bar Counsel’s Opposition Motion for

an Answer and Motion for Default and/or Dismissal at 2-4 (Mar. 14, 2011).

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Respondent’s first argument is baseless. During the prehearing conference, the Hearing

Committee Chair granted Bar Counsel’s motion to file out of time its response to Respondent’s

motion to dismiss. See Prehearing Tr. at 9 (Mar. 7, 2011).

We further find no basis for Respondent’s allegation that the Motion Hearing Committee

“tainted” the disciplinary proceedings before this Committee. The Motion Hearing Committee

completed its work on August 5, 2010, in an order granting Respondent’s motion to quash Bar

Counsel’s subpoena. See BX 19. The order noted that Bar Counsel may wish to consider

whether Respondent violated Rule 3.4(a) and/or Rule 8.4(d) by allowing his computer to be

destroyed while subject to Bar Counsel’s subpoena. Id. at 3-4. D.C. Bar Rule XI, § 6(a)(2),

grants Bar Counsel the power “[t]o investigate all matters involving alleged misconduct by an

attorney subject to the disciplinary jurisdiction of this Court which may come to the attention of

Bar Counsel . . . from any source whatsoever, where the apparent facts, if true, may warrant

discipline.” Respondent, as a person suspended by the Court, is “subject to the disciplinary

jurisdiction of this Court[.]” D.C. Bar Rule XI, § 1(a). Thus, Bar Counsel was empowered to

include Count II of the Specification of Charges based on Respondent’s alleged destruction of

evidence in violation of the Rules of Professional Conduct. We also note that this Hearing

Committee’s findings on the Count II charges are based upon clear and convincing evidence

proven by Bar Counsel during this proceeding. For these reasons, we recommend that the Board

deny Respondent’s second motion to dismiss.

3. Respondent’s Third Motion to Dismiss

In his third motion to dismiss, filed on April 7, 2011, Respondent alleged that the charges

were moot and that the Hearing Committee lacked jurisdiction over these proceedings because

they amount to a criminal prosecution. Respondent’s Answer to Specification and Third Motion

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to Dismiss at 2-4 (Apr. 7, 2011). In particular, Respondent claims that the charges against him

were mooted by the Court of Appeals’ March 20, 2008, suspension order and his purported

reinstatement. Respondent’s allegation that these disciplinary proceedings are moot and the

Hearing Committee lacks jurisdiction over the charges because he is not subject to the D.C.

Rules of Professional Conduct by virtue of his prior suspension is insupportable. Suspended

attorneys are subject to the disciplinary jurisdiction of the Court. See D.C. Bar Rule XI, § 1(a).

In addition, Respondent offers no explanation as to how his prior 18-month suspension would

impact the allegations in the current Specification of Charges whatsoever, let alone moot such

charges. In fact, Respondent’s prior suspension was premised upon different facts entirely and,

therefore, we find no basis for Respondent’s position that the prior imposition of discipline as a

result of unrelated facts and law can moot the current charges against him.

The jurisdictional argument in Respondent’s April 7, 2011, motion is based on his

mistaken assumption that Bar Counsel is pursuing criminal charges against him, which,

according to Respondent, it cannot do. While disciplinary proceedings are viewed as quasi-

criminal in nature, nothing prevents Bar Counsel from alleging that a respondent violated a Rule

of Professional Conduct by engaging in criminal conduct. Moreover, as explained in our Order

of April 19, 2011, Respondent was free to – and did – assert his Fifth Amendment privilege in

response to specific charges in the Specification of Charges or specific questions posed at the

hearing. Order, In re Mayers, Bar Docket No. 515-08 (HC Apr. 19, 2011). But Respondent has

no right to a blanket assertion of the privilege against self-incrimination, and thus such a blanket

assertion cannot form the basis for a motion to dismiss the charges entirely. For these reasons

we recommend that the Board deny Respondent’s third motion to dismiss.

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4. Respondent’s Fourth Motion to Dismiss

On August 23, 2011, Respondent filed a fourth motion to dismiss, this time based on

allegations of prosecutorial misconduct by Bar Counsel. Respondent requested: (a) that the

matter be reopened to allow newly discovered relevant evidence; (b) dismissal on the grounds

that Bar Counsel failed to disclose Mr. Shepard’s indictment and arrest during the hearing; and

(c) that Bar Counsel be disqualified and be independently investigated for misconduct. In our

Order of November 17, 2011, we recognized that a complainant’s criminal conviction may be

relevant to bias and admitted the certified copy of the conviction to assess the authenticity of

exhibits, “to the extent Bar Counsel introduced documents submitted by the complainant during

the course of the investigation[.]” Order, In re Mayers, Bar Docket No. 515-08 at 3 (HC Nov.

17, 2011). In that Order, we also deferred consideration of Respondent’s motion to dismiss. Id.

There is no requirement that the complainant must testify to an attorney’s alleged

violation of any D.C. Rule of Professional Conduct. Thus, Bar Counsel was permitted under the

rules to proceed with the adjudication of the charges without the complainant’s testimony. See

Sibley, 990 A.2d at 492 (there is no right to confrontation in a disciplinary hearing); Board Rule

11.3 (“Evidence that is relevant, not privileged, and not merely cumulative shall be received, and

the Hearing Committee shall determine [its] weight and significance . . . .”). We do not find

Respondent’s assertions regarding Mr. Shepard’s indictment and arrest to be a sufficient basis to

dismiss the charges against Respondent because Mr. Shepard’s complaint to Bar Counsel was

not the sole evidence considered. As described previously, our findings of fact are based upon

documentary and other evidence unrelated to the complainant, including bank records and

Respondent’s own statements.

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Finally, Respondent argued that Bar Counsel should be disqualified and be independently

investigated for misconduct. Specifically, Respondent asserted that Bar Counsel might have

informed Mr. Shepard that he had been indicted in the Eastern District of Virginia, thus allowing

him the opportunity to flee from his home in Miami, Florida, to San Antonio, Texas, where he

was arrested. Respondent offers no evidence to support his speculation. In our Order of

November 17, 2011, we found that the allegations of misconduct against Bar Counsel were

baseless and we noted that, “[i]f Respondent has a complaint against the Office of Bar Counsel,

the proper procedure is to file a request for administrative review by the Board.” For these

reasons, we recommend that the Board deny Respondent’s fourth motion to dismiss.

5. Respondent’s Fifth Motion to Dismiss

Finally, on February 24, 2012, Respondent moved to dismiss based on the death of Mr.

Shepard in January 2012 and res judicata. Specifically, Respondent claims that the charges

cannot stand now that Mr. Shepard is deceased. In support of this assertion, Respondent cites

Howell v. United States, 455 A.2d 1371 (D.C. 1983)12 and Dove v. United States, 423 U.S. 325

(1976). Both cases are inapposite, however, as they involve the death of criminal defendants

during the course of their own appeals. In such a case, a court cannot provide relief to the

appellant once the appellant is deceased. Here, Mr. Shepard was the victim of Respondent’s

misconduct and his death during the course of these proceedings neither negates the conduct

upon which the charges against Respondent are based nor requires dismissal of disciplinary

proceedings stemming from that conduct. As discussed, supra, in the discussion of the fourth

motion for dismissal, we are permitted under the rules to proceed with the adjudication of these

charges because there is no requirement that the complainant participate in the disciplinary

12Respondent mistakenly cited Howell at 435 A.2d 1371; the correct citation is provided here.

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proceedings. See Sibley, 990 A.2d at 492. The purpose of disciplinary proceedings is not merely

to address harm caused to a particular client by an attorney’s misconduct, but to maintain the

integrity of the profession. See In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc); In re

Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc).

In his February 2012 motion, Respondent further asserted that the current proceeding is

merely an attempt to re-open the prior disciplinary proceeding against him, which is barred by

the doctrine of res judicata. We find that there is no basis for that argument, however, as the

instant charges are based on conduct that post-dated the conduct that formed the basis for the

prior discipline. For these reasons we recommend that the Board deny Respondent’s fifth

motion to dismiss.

IV. Sanction

Bar Counsel has requested the sanction of disbarment, arguing first that either

Respondent’s misappropriation or his dishonesty alone is sufficient to merit this most severe of

sanctions, and second, that the totality of Respondent’s actions in his dealings with Mr. Shepard,

Bar Counsel and the Court warrants disbarment. Respondent disputes the evidence presented by

Bar Counsel and argues that it was “unconvincing.” Resp. Post-Hrg. Br. at 5. He further argues

that he lacked notice of Bar Counsel’s “theory of misappropriation” and, therefore, Count One

“must fail pursuant to law.” Id. at 6. Respondent’s post-hearing brief is devoid of any

discussion of sanctions.

The Court considers numerous factors in determining the appropriate sanction, including:

(1) the nature and seriousness of the misconduct; (2) the moral fitness of the attorney, including

the presence of any misrepresentation or dishonesty; (3) the attorney’s attitude toward the

underlying misconduct; (4) prior disciplinary violations; (5) mitigating circumstances; (6)

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whether counterpart provisions of the Rules of Professional Conduct were violated; and (7) any

prejudice to the client. See In re Goffe, 641 A.2d 458, 464 (D.C. 1994). The goal of the discipline

imposed is to maintain the integrity of the legal profession, protect the public and courts, and

deter future or similar misconduct by the respondent-lawyer and other lawyers. In re

Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc); In re Reback, 513 A.2d 226, 231 (D.C.

1986) (en banc). Further, the sanction imposed must not “foster a tendency toward inconsistent

dispositions for comparable conduct or . . . otherwise be unwarranted.” D.C. Bar Rule XI,

§ 9(h)(1).

A finding of intentional or reckless misappropriation creates a presumption of disbarment

absent “the most stringent of extenuating circumstances.” See In re Addams, 579 A.2d 190, 193

(D.C. 1990) (en banc). It is then incumbent on Respondent to show “extraordinary

circumstances” that support a departure from the presumption. Anderson I, 778 A.2d at 337-38.

Respondent’s misappropriation was at least reckless and Respondent has failed to

establish extraordinary circumstances that would exempt him from the Addams rule of

disbarment. Because the record reflects a wholesale lack of evidence that mitigation of the

presumptive sanction of disbarment is warranted here, the Hearing Committee recommends that

Respondent be disbarred.

Further, as a condition of any reinstatement, Respondent should be required to make

restitution in the amount of $1,500, plus interest at the legal rate from the date Respondent

deposited Mr. Shepard’s check (May 7, 2007) until restitution is made, to the Estate of

Alexander Shepard and/or the Clients’ Security Fund (to the extent the CSF pays out any

amounts on account of Respondent’s misconduct). Respondent should not be eligible for

reinstatement until he makes such restitution. See In re Austin, 858 A.2d 969, 978 (D.C. 2004)

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(Court ordered full reimbursement to the client and to the Clients’ Security Trust Fund when

lawyer engaged in a conflict of interest and fraudulently borrowed money from a client); In re

Lopes, 770 A.2d at 572 (Court ordered full restitution to two clients, with interest at the legal

rate, where lawyer neglected their matters); In re Wright, 702 A.2d 1251, 1258 (D.C. 1997)

(Court ordered restitution of $2,000 retainer, with interest, where lawyer filed civil complaint on

behalf of client, but then abandoned case).

V. Conclusion

Based on its Findings of Fact and the foregoing legal analysis, the Hearing Committee

respectfully recommends the following conclusions of law for the Board’s consideration:

that Respondent violated D.C. Bar R. XI, § 2(b)(3) (failed to notify Bar Counsel before practicing law as required by a Board order), and Rules 1.15(a) and 1.15(d) (committed reckless misappropriation and failed to treat unearned fees and unincurred costs as property of his client), 1.16(d) (failed to timely return a client’s papers), 3.3(a) (made false statements of material fact to a tribunal), 3.4(a) and 3.4(c) (obstructed another’s access to evidence and knowingly disobeyed an obligation under the rules of a tribunal), 5.5(a) (engaged in the unauthorized practice of law), 8.1(a) (knowingly made false statements in connection with a disciplinary matter), 8.4(b) (committed a criminal act that reflect adversely on his honesty, trustworthiness, or fitness), 8.4(c) (engaged in conduct that involved dishonesty, fraud, deceit or misrepresentation), and 8.4(d) (engaged in conduct that seriously interfered with the administration of justice); that Respondent be disbarred; and

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that, as a condition of any reinstatement, Respondent be required to make restitution to Mr. Shepard’s estate or its beneficiaries, and/or to the Clients’ Security Fund (“CSF”) if the CSF makes payment on any claims by Mr. Shepard’s estate or its beneficiaries, in the amount of $1,500, plus interest at the legal rate, from May 7, 2007, until the date of full restitution.

AD HOC HEARING COMMITTEE

__________________/ES/________________________ Eileen Sobeck Chair

__________________/AB/________________________ Andrea Berlowe Attorney Member

__________________/KW/________________________ Kawin Wilairat Public Member

Dated: June 18, 2013