DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

AD HOC HEARING COMMITTEE In the Matter of: : : DONNA M. PETERKIN, : : Respondent. : Bar Docket No. 387-07 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 473333 ) :

REPORT AND RECOMMENDATION OF AD HOC HEARING COMMITTEE

I. INTRODUCTION AND SUMMARY

Bar Counsel has charged Respondent with violating District of Columbia Rules of

Professional Conduct Rules 1.7(b)(4) (conflict of interest), 8.4(b) (commission of a criminal

act), and 8.4(c) (dishonesty, fraud, deceit or misrepresentation).

The Hearing in this matter took place on January 11-12, 2011, before an Ad Hoc

Hearing Committee comprising Mr. David Bernstein, Public Member; Ronnie Edelman,

Esquire; and John C. Peirce, Esquire (Chair). Deputy Bar Counsel Elizabeth A. Herman,

Esquire and Mary Helen Perry, Esquire, represented Bar Counsel. Joseph Compofelice,

Esquire, and Bruce L. Marcus, Esquire, represented Respondent.

All of the charges arise from Respondent’s former employment in the Office of

General Counsel, Civil Rights Division of the United States Department of Agriculture

(“USDA”). Bar Counsel contends that Respondent created a potential conflict of interest by

undertaking work for a private consulting firm as a non-lawyer investigator of Equal

Employment Opportunity (“EEO”) claims, including at least two claims of USDA employees

against USDA, while she was employed as an attorney on the USDA payroll. See Bar

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Counsel’s Proposed Findings of Fact, Conclusions of Law and Recommendation as to

Sanction filed February 15, 2011 (“BC Br.”) at 27-29. Bar Counsel contends that Respondent

violated the federal “false statements” statute, 18 U.S.C. § 1001(a), by intentionally filing

with USDA a “Financial Disclosure Form 450 concealing her outside employment.” The

charge also asserts that Respondent violated 18 U.S.C. § 1018 by allegedly falsifying Form

450. See BC Br. at 25-27. Bar Counsel contends that Respondent (a) was dishonest with

her supervisors at USDA by concealing the fact that she was engaged in allegedly improper

outside employment as an EEO investigator; (b) filed the inaccurate Form 450 described

above; and (c) dishonestly concealed from the consulting firm that hired her as a non-lawyer

EEO investigator that she was concurrently employed by USDA as an attorney. See BC Br.

at 21-25.

Respondent denies all of the charges. She denies that any actual or potential conflict

of interest existed between her representation of USDA and her occasional freelance work as

a non-lawyer EEO investigator. To the extent there were inaccuracies on her Form 450 she

maintains that they were unintentional and immaterial mistakes and, therefore, neither

criminal violations of 18 U.S.C. §§ 1001(a) or 1018 nor dishonest within the meaning of

Rule 8.4(c). See Respondent’s Proposed Findings of Fact, Conclusions of Law and Summary

Statement filed March 7, 2011 (“R Br.”) at 8-16.

In addition, and in the alternative, Respondent argues that the charges should be

dismissed because “identical” charges were adjudicated in a Maryland disciplinary

proceeding against Respondent, Attorney Grievance Commission of Maryland v. Donna M.

Peterkin, Case No. CAE08-25193. The Maryland charges were dismissed after a Maryland

court found that Respondent had not engaged in any criminal act and did not engage in

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conduct involving dishonesty, fraud or deceit. R Br. at 29-30; RX 3 at 7, 11. Respondent

argues that the reciprocal discipline principles articulated by the Court of Appeals in In re

Perrin, 663 A.2d 517, 522-23 (D.C. 1995) should bar relitigation in the District of Columbia

of disciplinary charges already fully litigated and dismissed in Maryland.

The Ad Hoc Hearing Committee recommends that all charges against Respondent in

this matter be dismissed. This is a very close case as to the Rule 8.4(c) charge. As we will

explain, Respondent’s filing of an inaccurate Form 450 in January 2007 was clearly

negligent, and borders on recklessness. A finding of recklessness would require a conclusion

that Respondent violated Rule 8.4(c). As the Court of Appeals put it in In re Romansky, 938

A.2d 733 (D.C. 2007), the facts as to the Rule 8.4(c) charge are “virtually in equipoise” but

here, as in Romansky, Bar Counsel has not met the burden of showing recklessness by clear

and convincing evidence.

II. PROCEDURAL BACKGROUND

The Petition and Specification of Charges were filed on July 8, 2010. The

Specification of Charges charged Respondent with violating Rules 1.7(b)(4) (conflict of

interest), 8.4(b) (commission of a criminal act), and 8.4(c) (dishonesty). Respondent’s

Answer was filed on August 4, 2010. The Pre-Hearing Conference took place on October

29, 2010, before the Chair of the Hearing Committee. Assistant Bar Counsel, Respondent’s

counsel and Respondent were present. Bar Counsel filed proposed exhibits, an exhibit list

and list of witnesses on December 21, 2010. Respondent filed her exhibits, list of exhibits

and witness list on December 22, 2010, together with a motion for leave to file late, which

the Chair granted. No objection was made to the authenticity of any exhibit. On January 7,

2011, Respondent’s counsel filed a motion to admit Bruce L. Marcus, Esquire, pro hac vice,

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which was granted. The Hearing took place on January 11-12, 2011. Bar Counsel’s Exhibits

(“BX”) A-D and 1-14 were admitted, in some cases over Respondent’s objections as to

hearsay and relevance. In overruling those objections, the Chair stated that by merely

admitting an exhibit the Committee was not prejudging whether or not to give that exhibit

any weight. Transcript (“Tr.”) 337-45, 386, 578, 581. Respondent only sought admission of

Respondent’s Exhibit (“RX”) 5, which was admitted. Tr. 584. The record remained open

until January 31, 2011. Tr. 617:15-21. The hearing transcript was served on the Committee

and counsel on January 28, 2011. On February 10, 2011, Bar Counsel filed an “Unopposed

Motion for Extension of Time to File Brief,” and subsequently filed its post-hearing brief on

February 15, 2011. On February 28, Respondent’s counsel filed a “Consent Motion for

Extension of Time” and subsequently filed Respondent’s responsive brief on March 7, 2011.

The motions for extension of time were granted.

III. FINDINGS OF FACT

A. Respondent

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

(“Bar”), admitted October 4, 2004. Her assigned Bar number is 473333. Respondent is also

a member of the Maryland Bar, admitted December 2, 2003. BX A.

2. Respondent graduated from Catholic University Columbus School of Law in May

2003. Tr. 393-395; BX 4B at Bates stamp (“Bates”) 57. Previously she had earned

Associate and Bachelor’s degrees in paralegal studies, and had worked for several years as a

paralegal in medical malpractice and insurance defense cases. Tr. 392-393.

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3. Beginning sometime before she attended law school, and continuing into her period

of employment by USDA in 2006-07, Respondent worked part-time as a fitness instructor at

Fitness First. Tr. 542, 556.

4. Respondent was employed as an attorney at Steptoe & Johnson from 2003 to 2005

and was a summer associate at that firm during law school. She left Steptoe for Leftwich &

Ludaway in November 2005 and left that firm at the end of January 2006. Tr. 396-397; BX

4B at Bates 47, 57. Respondent testified that she left each of these firms because she wanted

to work on individual employment discrimination cases. Tr. 517-520.

5. After leaving Leftwich & Ludaway and before beginning employment at USDA,

Respondent conducted a part-time solo law practice, working from home, on which she

“handled maybe two cases for a classmate from law school.” Tr. 404.

6. In or about March 2006, Respondent completed training and was certified by EEOC

as an EEO investigator. Tr. 397. Thereafter, using a résumé she prepared in about March

2006, she applied as an independent subcontractor EEO investigator to several government

contractors that handle EEO work. Tr. 399-403. She signed “independent contractor

agreements” with Kensington Associates and performed assignments as an independent EEO

investigator beginning in March or April 2006. Tr. 402.

7. In November 2006, Respondent again sent her résumé to independent contractors that

handle EEO work and, in addition to Kensington Associates, she performed investigations

for DSZ, Compucon, First Infotech and Draughn & Associates. Tr. 403. She also authorized

a firm called Delta to use her résumé in bidding on a contract, but she did no work as a result.

Tr. 403-404.

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8. Respondent continued doing EEO investigations, and receiving payment from the

firms with which she had contracted, for the remainder of 2006 and throughout 2007, before

and after she began working in the USDA Office of General Counsel in July 2006. Tr. 414;

BX 4B at Bates 55-56, 60-61; BX8.

B. Respondent’s Application for Employment at USDA

9. In the spring of 2006 Respondent began searching for a government job by

submitting her résumé on USAJobs and responding to questions submitted to her through

that website. Tr. 405.

10. Arlean Leland, Esquire, Associate General Counsel for the Civil Rights Division,

Office of the General Counsel, USDA was called as a witness by Bar Counsel. Tr. 37-38.

11. Ms. Leland testified that originally Respondent applied for a GS-11 permanent

position doing employment litigation. Tr. 62. However, while the GS-11 position was still

open, USDA got authority to hire an additional attorney at the GS-13 level on a

“reimbursable” basis to work on discovery matters in the Keepseagle v. Veneman class action

litigation. Tr. 51-52. The Keepseagle case was a “program discrimination” case alleging

that USDA discriminated in providing benefits such as loans or services to farmers. Id. A

“reimbursable” position limits the employee to working on cases in the “mission area,”

which in this case encompassed the Foreign Services Agency, the Foreign Agricultural

Service and the Risk Management Agency. Tr. 52-53.

12. Ms. Leland offered Respondent the choice of a permanent GS-11 position doing

employment litigation or a temporary GS-13 position working on the Keepseagle case, which

did not involve employment discrimination. Tr. 62-63. Respondent chose the higher salary

position working on the Keepseagle case. Id.

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13. Respondent was to some degree confused about the temporary nature of the positions

open to her – either because she did not understand or because Ms. Leland and her

subordinates made inconsistent representations – but in the end Respondent learned that the

position was as a temporary at-will employee for a term not to exceed one year. Tr. 414-418.

Respondent clearly understood that the job she accepted involved program discrimination

claims and not employment discrimination claims under the jurisdiction of EEOC. Tr. 406-

407.

14. There are some differences between the two-year position described in the job listing

for which Respondent applied, BX 2A, and the Notification of Personnel Action appointing

Respondent to a one-year position, BX 2B. Ms. Leland credibly explained that while

Respondent was not automatically entitled to a second year of employment, it would be

routine for the USDA to issue another SF-50 form covering the second year for such an

employee. Tr. 136-137. Since it is undisputed that Respondent was, in effect, an employee

at will who either resigned or was terminated well before the end of her first year of

employment, we do not believe that details of the process that would have been necessary for

Respondent to continue working at USDA after July 10, 2007 are material to this proceeding.

15. Respondent participated in two interviews in June 2006 before she was hired at

USDA. The first was with Ms. Leland and two other USDA employees; but only Ms. Leland

asked any questions. Tr. 129. The second was with Inga Bumbary-Langston, Esquire, an

Assistant General Counsel for Civil Rights, Litigation Division at USDA, who became

Respondent’s immediate supervisor. Tr. 196.

16. Ms. Leland testified that during the interview Respondent disclosed the fact that she

was currently performing EEO investigations. Tr. 56-59. Respondent corroborated this. Tr.

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411-412, 423-424. Ms. Leland believed this experience made Respondent a strong candidate

for the “employment side of the house” or if Respondent was “hired for the employment

job.” Tr. 57, 121-122. Ms. Leland asked Respondent to recommend good EEO investigative

firms, which she did. Tr. 58, 122.

17. Ms. Leland testified that in the interview, she told Respondent that her EEO

experience would be “very helpful if you’re selected for this job,” but “you won’t be able to

do that once you start.” Tr. 59. She testified that Respondent seemed to her to acquiesce in

this statement. Tr. 59-60. However, on cross-examination, Ms. Leland also testified that she

did not ask Respondent in the interview for any details about her EEO investigative practice

because “that’s not relevant to the work she would have been doing at USDA.” Tr. 129.

18. Ms. Leland evidently has worked hard to refresh her recollection. Ms. Leland testified

that she has reflected on this part of the conversation in preparing to testify in at least three

separate proceedings on this issue, and had to “reach back into the recesses and remember.”

Tr. 59. Ms. Leland does not seem clearly to recall whether or not in June 2006 she considered

Respondent’s EEO experience as relevant to the USDA position. Compare Tr. 59 with Tr.

129. Moreover, Ms. Leland’s testimony indicates that the discussion of Respondent’s EEO

investigation experience occurred in the context of the GS-11 employment discrimination

position that Respondent turned down, not the program discrimination job that she accepted.

Tr. 57, 121-122. Because the witness does not remember the specific instruction she recalls

giving to Respondent, her testimony that Respondent seemed to acquiesce is speculative and

tentative. Tr. 59-60. The evidence does not show that Ms. Leland warned Respondent in the

initial interview that she would have to stop taking EEO investigation cases if she took the

program discrimination job working on the Keepseagle case.

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19. Ms. Bumbary-Langston was called as a witness by Bar Counsel. Tr. 194.

20. Respondent’s second interview was with Ms. Bumbary-Langston, who was to

become her supervisor at USDA. Ms. Bumbary-Langston has no clear recollection of what

happened at that interview or whether there was any discussion of Respondent’s EEO work.

Tr. 197-199, 234-237.

21. Respondent was hired by USDA primarily to work on the document production in the

Keepseagle v. Veneman case, a $19 billion class action alleging discrimination in

administering a federal program. There were about 19,000 plaintiffs and USDA faced

potential sanctions for failure to comply in a timely manner with massive discovery requests.

Respondent reported directly to Ms. Bumbary-Langston, who directly supervised the

Keepseagle team. Tr. 409-411.

22. Respondent’s first day of work at USDA was July 10, 2006. BX 2B; Tr. 144-145.

C. Respondent’s Outside Employment

23. Bar Counsel contends that Respondent was subject to USDA and federal personnel

policies that prohibited outside employment without prior approval. BC Br. at 6 (PFF 7).

Ms. Leland testified that in her experience she and other employees must have all outside

activities approved by the USDA Ethics Office, and that this is codified in the Office of

General Counsel’s Collective Bargaining Agreement (“CBA”) BX 2C; BX 12; Tr. 65-72;

106-109.

24. While Respondent was never a member of the union, Bar Counsel’s witnesses

insisted that the Collective Bargaining Agreement’s requirement to have all outside activities

approved applied to all employees, whether or not they were union members. Ms. Bumbary-

Langston confirmed that Respondent was not a union member or covered by the collective

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bargaining agreement, but testified that it was customary to give even temporary employees

like Respondent a copy of the CBA and its attendant personnel policies. Tr. 243-247.

25. The CBA provides, in pertinent part, as follows:

OUTSIDE EMPLOYMENT AND OTHER OUTSIDE ACTIVITIES

Article 20.

Section 1. Introduction. Employees may engage during non-duty hours in outside activities, including outside employment, that do not involve conduct prohibited by statute or federal regulation. The Standards of Ethical Conduct for Employees of the Executive Branch (Executive Branch Standards), 5 C.F.R. Part 2635, and the Supplemental Standards of Ethical Conduct for Employees of the Department of Agriculture (USDA supplemental regulation), 5 C.F.R. Part 8301, shall be implemented as to employees subject to the provisions of this article.

Section 2. Prior Approval of Outside Employment.

a. Coverage. Except as otherwise provided in this Article, prior Agency approval for outside employment shall be obtained by . . . any employee required to file . . . a confidential (Office of Government Ethics Form 450) financial disclosure report, if the employment falls within the definition contained in the USDA supplemental regulation . . . .

b. Procedure. A covered employee who wishes to engage in outside employment shall present a written request for approval to the head of the division or office in which the employee is located . . . .

c. Standard for Approval. The Agency shall approve a covered employee’s request to engage in outside employment, unless it determines that the outside employment is expected to involve conduct prohibited by statute or federal regulation, including 5 C.F.R. Parts 2635 and 8301.

BX 2C at Bates 39.

26. Bar Counsel failed to provide evidence beyond the conclusional statements of Ms.

Leland and Ms. Bumbary-Langston, that the CBA applied to Respondent. However, based

on the Committee’s review, 5 C.F.R. Parts 2635 and 8301 appear to apply to all or most

Executive Branch and USDA employees whether or not they are covered by the CBA, and

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the portion of the CBA quoted above appears closely to track the underlying regulations. For

purposes of this Report, therefore, we assume that Respondent was required to seek approval

of all outside employment, and that USDA was required to approve such employment unless

the outside employment involved conduct prohibited by statute or federal regulation.

27. Bar Counsel has not identified any statute or federal regulation that would have

prohibited Respondent, during the term of her employment at USDA, from performing

independent EEO investigations of federal agencies other than USDA. Thus, despite

testimony by Ms. Leland and Ms. Bumbary-Langston that they disapproved of Respondent’s

outside activities as an EEO investigator in cases that did not involve USDA, there is no

evidence from which we could find that USDA would have had a basis under the CBA or 5

C.F.R. Parts 2635 and 8301 to disapprove such activities. In this regard it is significant that

Respondent’s current employer, HHS, has approved Respondent’s outside EEO investigation

work. Tr. 558-559. By making this finding, the Committee is not making a substantive

determination with regard to federal employment or employee ethics policies and

regulations; we are simply addressing the limited evidentiary record in this disciplinary

proceeding.

D. Respondent’s Outside Employment as a Fitness Instructor

28. From the beginning of her employment at USDA, Respondent informed Ms. Leland

and Ms. Bumbary-Langston that she had a pre-existing commitment to teach evening fitness

classes in Rockville, MD. Respondent requested, and received, a work schedule from 8:00

AM to 4:30 PM so that she could get to Rockville after work in time to teach the fitness

classes. Tr. 63, 214-215.

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29. In addition, at some point during her employment at USDA, Respondent began

teaching a step aerobics class in the USDA fitness center during her lunch hour. Ms. Leland

learned about that activity and did not object to it. Tr. 63-64.

30. Neither Ms. Leland nor Ms. Bumbary-Langston was concerned about Respondent’s

outside employment as a fitness instructor. They adjusted her work schedule to suit the

fitness job in Rockville, and Ms. Leland believed Respondent had the right to teach step

aerobics at USDA during her lunch hour. Tr. 64.

31. In January 2007, Respondent was instructed to seek formal written approval of her

outside employment as a fitness instructor, but it is not clear whether or not she ever did. BX

3C at Bates 50; Tr. 502-506. Two months later she left USDA.

E. Respondent’s Outside Employment as an EEO Investigator

32. On or about August 30, 2006, Respondent brought some papers from an EEO

investigation to work in order to copy them on USDA’s copiers. The investigation involved

the Department of Energy, not USDA. Respondent testified she used the USDA copiers

because she was having problems with her home printer. Respondent unintentionally left the

documents on the USDA copier. Another employee found the documents and gave them to

Ms. Bumbary-Langston. Tr. 74-77; 204-205; 424-425.

33. Ms. Bumbary-Langston testified that there were three reasons she was concerned by

this episode. First, “there was confidential material left on the copier, and a lot of people

have access to the copy room. Second of all, it was non-USDA information dealing with

EEO matters. And thirdly, [Respondent] apparently was copying non-USDA documents not

associated with her work on government time.” Tr. 204-205. Ms. Bumbary-Langston

explained these concerns to Respondent immediately. Tr. 204-205; 426-427.

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34. Respondent testified that she understood Ms. Bumbary-Langston to be saying she

could not use USDA equipment for outside employment, nor work on outside matters during

her USDA work hours. Tr. 426-427.

35. Respondent sent Ms. Bumbary-Langston an e-mail on August 30, 2006, apologizing

for the situation, explaining that she was only using the USDA copier because her home

scanner was broken. Ms. Bumbary-Langston responded with an e-mail stating that “you

cannot do outside work on government time,” and asking questions about Respondent’s

“assignments for EEOC.” In a reply e-mail Respondent further explained: “I am not doing

any work through EEOC. I had planned on continuing to work occasionally as a

sub[contractor], handling some [EEO] investigations as long as it does not conflict with

USDA. I usually get cases for DOE and have turned down work involving USDA b/c of the

conflict. Presently, I don’t have any new assignments.” BX 3A at Bates 48. Tr. 205-206;

425-427.

36. Ms. Bumbary-Langston reported the episode to Ms. Leland. Tr. 206-208. Ms.

Bumbary-Langston recalls that Ms. Leland “was very emphatic that Ms. Peterkin could not

work on EEO investigations for anyone; that would be a conflict with what she is doing at

USDA.” Id. Ms. Leland recalls that she told Ms. Bumbary-Langston to tell Respondent to

“knock it off.” Tr. 74.

37. After conferring with Ms. Leland, Ms. Bumbary-Langston sent Respondent an e-mail

on August 30, 2006 asking her to “[s]top by my office . . .” BX 3A at Bates 48. At that

meeting Ms. Bumbary-Langston testified that she orally told Respondent “that she could not

do any work, any EEO work for any other agency, subcontractor, et cetera.” Tr. 254. The

instruction was not reflected in an e-mail or other memorandum. Tr. 255.

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38. Respondent has a different recollection of the conversation. She recalls disclosing the

nature of her outside work investigating the DOE EEO matter, but does not recall Ms.

Bumbary-Langston asking any questions. Tr. 429-430; 553-554.

39. While the evidence is scanty and contradictory, we find that Ms. Bumbary-Langston,

after checking with Ms. Leland, orally told Respondent on August 30, 2006 that Respondent

should not work on any outside EEO investigations while employed at USDA. It is unclear

how forcefully the instruction was given, and Ms. Bumbary-Langston apparently never

reduced it to writing or followed up to see if Respondent was complying. Respondent in fact

did not comply and continued to take on outside EEO investigations for agencies other than

USDA. In November 2006, Respondent sent applications to additional vendors, offering to

perform EEO investigations. Tr. 431.

40. Respondent worked on non-USDA EEO cases as an objective investigator, not as a

lawyer or advocate. Both she and her supervisors at USDA understood that Respondent was

acting in this neutral capacity when she conducted EEO investigations. Tr. 235-236; 407.

EEO investigators do not need to be lawyers, or have any legal training, or be a member of

any bar. Tr. 459-460.

41. After the copying machine episode of August 2006, Respondent continued to perform

occasional EEO investigations, not involving USDA. Respondent never submitted a formal

request with USDA for approval of her outside activities as an EEO investigator. However,

Respondent testified, she has sought and received approval in 2009 and 2010 from her

current employer, HHS, to conduct EEO investigations, as well as training and certifying

investigators and counselors, provided the EEO investigations do not involve HHS. Tr. 558-

559.

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F. Respondent’s Attendance Issues at USDA

42. Respondent testified that she developed serious symptoms of illness during her first

week of employment at USDA. Tr. 418. The medical condition required hospitalization and

frequent absences from work. Tr. 419-422. Respondent testified credibly that she accurately

reported dates and times of her doctor’s appointments to USDA. Tr. 421-422.

43. Because Respondent was a new temporary employee, she had not accrued sufficient

sick leave to cover her medical absences. She testified that USDA advanced her sick leave.

Tr. 422.

44. Ms. Leland confirmed that Respondent was in the hospital for several days and also

requested time off to go to doctor visits, which was always granted. Tr. 159.

45. Respondent and her supervisors had disagreements about her attendance that went

beyond sick leave. In August 2006, Respondent took two days of personal leave, which

triggered criticism of her absenteeism. Tr. 422. Respondent testified credibly that at about

this time Ms. Leland told her “that I have a black cloud over my head.” Tr. 422.

46. Respondent testified that during her illness, in addition to her USDA employment,

she continued to work as a part-time fitness instructor and independent EEO investigator. Tr.

422-423.

G. Respondent’s Work on the Hampton Case

47. In late December 2006, in addition to her work on Keepseagle, Respondent was

assigned to work on In re Hampton, FSGB N0. 2006-12, a termination case before the

Foreign Service Grievance Board. BX 13; Tr. 80-82. The Hampton case did not involve an

EEO issue. Tr. 446.

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48. Respondent and her supervisors gave different descriptions of the circumstances

under which Respondent was assigned to the Hampton case. Respondent testified that Ms.

Leland peremptorily assigned her to the case on Friday December 29, 2006, immediately

before the New Year’s holiday weekend, and ordered her to work over the weekend because

trial was scheduled in just 12 business days. Respondent testified that she neither

volunteered nor asked to be assigned to this case. Tr. 433-436. Ms. Leland testified that

Respondent had asked to do “employment” litigation, and that this preference had something

to do with the assignment. Tr. 80. However, Ms. Leland also testified that a “Senior

Executive Service manager contacted my office during the Christmas holiday, in a panic”

because the Hampton case was not ready to go to trial. Tr. 81.

49. The Hampton case was scheduled for trial in mid-January 2007 and was not ready for

trial when it was assigned to Respondent at the end of December 2006. The USDA

employee previously assigned to the Hampton case, Ejike Obineche, was “somewhat

overwhelmed” according to Ms. Leland and, moreover, was employed as an employee

relations specialist, not a lawyer. Tr. 81-84.

50. Respondent, who had no knowledge of the facts of the Hampton case and had no

experience trying cases before the Foreign Service Review Board, worked long hours

(including some 30 hours of “comp time”), prepared the case and tried it in January 2007.

Tr. 436-439.

51. Closing briefs were due in March 2007. Respondent testified that she prepared the

closing brief using a template provided by Ms. Bumbary-Langston. Tr. 442-443. Ms.

Bumbary-Langston testified that Respondent “struggled with the brief,” although she had

done a good job at the trial. Tr. 86-87. There was some confusion about the due date for the

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brief, and Ms. Bumbary-Langston required changes to the brief, which Respondent made

working from home on the evening of March 22, 2007. Tr. 87-88; 223-224; 444-445. That

evening Respondent filed the brief by e-mail and inadvertently sent the “redline” or “track

changes” version. Tr. 87-88; 223-224; 444-445. Realizing her error, Respondent re-sent the

correct final version of the brief that same evening. Tr. 445.

H. Respondent’s Resignation and Termination From USDA

52. On March 23, 2007, the day after Respondent had inadvertently filed the “redlined”

brief in the Hampton case, Ms. Leland and Ms. Bumbary-Langston met with Respondent and

told her she had the option to resign or be terminated. Tr. 102; 264-265; 446.

53. By letter dated March 26, 2007 Respondent resigned, effective April 13, 2007. BX

2E.

54. While Respondent was paid through April 14, 2007, she never returned to the office

to do any work after March 23, 2007. Tr. 225-226; 545-546.

55. On or about April 25, 2007, Respondent’s resignation was rescinded and converted

into a termination. BX 2F. Respondent subsequently contested this action and brought

discrimination claims against USDA. In the end, the matter was settled on the basis that

Respondent would resign and receive a neutral job reference from USDA. Tr. 482; 543-545.

I. Respondent’s Alleged Failure to Disclose Her USDA Employment to DSZ

56. Bar Counsel called as a witness Sonya K. Williams, President of Delany, Siegel &

Dorn & Associates (“DSZ”), an EEO consulting firm. DSZ hires independent investigators

to investigate EEO cases. Some 95% of DSZ’s work is done for various federal government

agencies. Tr. 275-277.

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57. In November 2006, Respondent sent her résumé to several consulting firms, including

DSZ, seeking additional opportunities to work as an EEO investigator. She used the same

résumé she had used in March 2006 to apply to the USDA. Respondent did not update the

résumé to reflect her federal agency employment. BX 4 at Bates 57; Tr. 283-285; 492-493.

58. On November 13, 2006, DSZ and Respondent entered into an Independent Contractor

Agreement, under which Respondent was eligible to receive assignments from DSZ as an

EEO investigator. BX 4 at Bates 52-54. Tr. 283-285. On the same date, Respondent signed

DSZ’s nondisclosure agreement. BX 4 at Bates 66. These two documents were the only

agreements between Respondent and DSZ. Tr. 324.

59. Ms. Williams testified that it is DSZ’s policy not to use investigators who are

currently employed by any federal agency because, in DSZ’s view, this is incompatible with

the neutral role of the EEO investigator. DSZ will use former federal employees as

contractors, but not to investigate their former agency. Tr. 282-283.

60. DSZ did not communicate any policy against concurrent federal employment to

Respondent at any time relevant to the disciplinary charges. Neither the Independent

Contractor Agreement nor the Nondisclosure Agreement signed by Respondent in November

2006 contained any restriction on federal employment. The Independent Contractor

Agreement provides that “Contractor is free to contract for similar or other services, as long

as Contractor does not directly compete with DSZ or solicit similar business from DSZ

clients.” BX 4 at Bates 52-54, 66; Tr. 325-326. According to Ms. Williams, the documents

signed by Respondent stated that she could have any other employment she wanted,

“unrestricted by anything.” Tr. 325.

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61. DSZ added an express prohibition against federal employment to its contract forms

after this case. Tr. 326.

62. Respondent had several e-mail exchanges with DSZ in which she discussed her EEO

qualifications but did not mention her employment at USDA. BX 4 at Bates 62-64; Tr. 521-

522.

63. Respondent performed several EEO investigations for DSZ before March 2007.

None of them involved USDA. BX 4 at Bates 60; Tr. 285-288.

64. On March 22, 2007, DSZ assigned Respondent two additional investigations that

were for USDA. Tr. 288. The next day was Respondent’s last day in the office at USDA.

65. Sometime after March 23, 2007, Respondent sent USDA a request for documents in

connection with the EEO investigations she had been assigned by DSZ on March 22, 2007.

Tr. 524-526.

66. In April 2007, Ms. Leland learned that Respondent had submitted a request for

personnel documents to the USDA Human Resources office in connection with an

investigation of a senior USDA official. Tr. 104.

67. On April 19, 2007 (five days after the April 14, 2007 effective date of Respondent’s

termination, BX 9 at Bates 91), Mr. Kirk Baylor, the Contracting Officer’s Technical

Representative for the USDA (the person who had assigned DSZ the two USDA EEO cases,

which DSZ in turn had assigned to Respondent on March 22, 2007) informed DSZ that

Respondent was an employee of USDA, whereupon DSZ assigned the two USDA cases to

another investigator. BX 4 at Bates 55; Tr. 290-291.

68. While DSZ reassigned the two USDA investigations, they continued to assign other

investigations to Respondent until June 2007, because Respondent informed them that she

20

had been a contractor at USDA and had resigned. BX 4 at Bates 60; Tr. 297-300. DSZ

allowed Respondent to finish the cases assigned to her at that time, but according to an

August 1, 2007 letter from DSZ to USDA they stopped assigning her any new investigations.

BX 4 at Bates 55-56.

69. According to Ms. Williams, DSZ stopped assigning investigations to Respondent

after USDA informed them that they believed Respondent was collecting unemployment

benefits while working for DSZ. Tr. 300-302.

J. Respondent’s Incomplete Disclosures on Federal Form 405

70. On January 12, 2007, just six days before the hearing in the Hampton case,

Respondent was asked to complete a Financial Disclosure Report, Form 450, which she

signed with the certification that it was “true, complete and correct to the best of her

knowledge.” BX 5 at Bates 68. She submitted the form to the USDA Office of Ethics. BX

3C; BX 5 at Bates 68.

71. Form 450 required Respondent to list any outside positions she held during the 12-

month period before she filed the form. BX 5 at Bates 68. Respondent disclosed one of her

fitness instructor positions (Fitness First of Bethesda) but omitted all other paid and volunteer

positions that she held during the 12 months between January 13, 2006 and January 12, 2007,

including her employment at Leftwich and Ludaway, her solo law practice, and her EEO

investigative work before and after joining USDA. BX 5 at Bates 68, Tr. 450-451.

72. Respondent testified that when she filled out the Form 450 in January 2007 she had

no intent to mislead USDA about any of her outside activities. She stated in particular that

she had no intention of concealing her EEO investigative work, which she had already

disclosed to her supervisors before and after beginning employment at USDA. Tr. 451-452.

21

We find this testimony credible. Respondent had already had extensive conversations and

email exchanges with her supervisors about her outside EEO work. BX 3A at Bates 48.

Even though Ms. Bumbary-Langston orally told Respondent to discontinue her outside EEO

work after August 2006, Respondent knew that her USDA supervisors knew that she had

engaged in outside EEO investigations at least through August 2006, before and during her

employment at USDA. Moreover, the omissions of non-controversial activities such as

volunteer work for AARP and solo law practice are more consistent with carelessness than

with any deceptive intent. Respondent testified credibly that she was consumed by the final

stages of trial preparation (“in trial mode”), filled out the form “in haste,” and simply “didn’t

pay attention.” Tr. 449-452. The Committee wishes to emphasize that we are not condoning

in any way Respondent’s failure to fill out the Form 450 completely and accurately; but we

find that her failure on January 12, 2007 was negligent and not reckless or motivated by an

intent to deceive.

73. Bar Counsel points out that Respondent filed a substantially incomplete Form 450

when she was preparing for trial in the Hampton case, which involved (among other things) a

claim that Mr. Hampton had failed to disclose stock ownership and ownership of a private

company on his Form 450. BX 13; Tr. 471-472. This is certainly ironic. It emphasizes (but

does not change) the fact that Respondent should have been more careful and complete in

responding to the Form 450 questions. It highlights Respondent’s admitted and unjustifiable

carelessness at a time when she was preoccupied with preparing for trial. But it does not

support an inference that Respondent was trying to conceal outside EEO investigation work

that she had already disclosed to, and discussed with, her USDA superiors.

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74. On January 17, 2007, USDA ethics specialist Ellen Pearson sent Respondent an e-

mail informing her that she must “fill out an Approval for outside employment form” for the

outside fitness instructor job disclosed on her Form 450. BX 3C at Bates 50 and BX 6 at

Bates 73 (same e-mail); Tr. 502-506. Respondent received this email while she was out of

the office at the Hampton trial and does not recall whether or not she ever filled out the

approval form as requested. Tr. 506. Two months later Respondent left USDA.

75. Respondent did not update or amend the Form 450 between the time she filled it out

in January 2007 and the time she left USDA in March 2007. The Committee finds this

troubling. After the Hampton hearing was over and Respondent was no longer in “trial

mode,” and after Ms. Pearson’s email indicated that USDA paid close attention to outside

activities, Respondent could and should have submitted a corrected Form 450. Her failure to

do so was negligent. Bar Counsel invites us to find that Respondent’s failure to correct the

many omissions in her Form 450 shows an intent to deceive; but we find that the evidence in

this case does not support such an inference.

22. Allegations of “Continued Pattern of Dishonest Conduct”

76. After her separation from USDA, Respondent filed bi-weekly claims for

unemployment compensation benefits with the District of Columbia Department of

Employment Services (“DOES”), beginning on May 21, 2007. BX7 Bates 75.

77. Bar Counsel contends that on some of these forms Respondent falsely certified that

she had performed no work during the two-week period. See BC Br. at 12-13 ¶¶ 25-29.

Respondent testified that she contacted the Office of Unemployment before filing for benefits

and was told that because she was, in effect, on call as an EEO investigative consultant and

the potential income is not guaranteed, she was technically unemployed. Tr. 527-528.

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78. BX 1 at Bates 2-34, proffered by Bar Counsel but unsupported by testimony or even

explanation, appears to be an opinion and order in an unemployment appeal by USDA before

the District of Columbia Office of Administrative Hearings disqualifying Respondent from

receiving unemployment benefits, not because she was receiving income from DSZ, but,

rather, because her attendance problems at USDA were so bad that they constituted

“misconduct” justifying termination. The administrative law judge was troubled by the

allegations that Respondent concealed her outside EEO activities from USDA, but held that

since USDA did not find out about them until after she had resigned, they could not have

caused her termination. The ALJ suggested that there might be a violation of the Rules of

Professional Conduct in the District of Columbia and Maryland, and indicated she would

refer the matter for investigation. Presumably this was the genesis of Bar Counsel’s charges.

79. The ALJ’s findings were based on a great deal of testimony not presented to this

Committee concerning Respondent’s absenteeism at USDA. We note the ALJ’s conclusion

that Respondent was ineligible for unemployment benefits because her poor attendance

record and poor work performance at USDA justified termination. None of the charges in

this case relates to absenteeism or poor performance at work. We give no weight to the

observations by the ALJ about Respondent’s concurrent employment at USDA and work as

an EEO investigator for DSZ, which had no bearing on the ALJ’s ruling. The ALJ specified

that she believed those matters should be taken up by the District of Columbia and Maryland

Bars, and this proceeding is the result.

80. The evidence does not support a finding that Respondent’s claims for unemployment

contributed to a “pattern” of dishonesty. This Committee is not in a position to determine

whether or not Respondent claimed unemployment benefits for which she was ineligible.

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There is no charge of misconduct based on Respondent’s unemployment filings and the

record and briefing on this point are perfunctory.

81. Bar Counsel also contends that Respondent made false statements in her application

for her current job as an EEO Specialist (a non-lawyer position) at the United States

Department of Health and Human Services (“HHS”). BC Br. at 13-15 ¶¶ 30-34. Respondent

answered “No” to the question whether she had “been fired from any job for any reason,” or

“quit after being told that you would be fired,” or “le[ft] any job by mutual agreement

because of specific problems.” BX 14 at 2, Item 12; Tr. 560-561. Respondent testified that

she answered “No” because the settlement of her discrimination case against USDA was that

she would resign and receive a neutral job recommendation. There is no charge of

misconduct based on Respondent’s job application at HHS, and the record is too sparse

concerning the issues in and settlement of Respondent’s discrimination case against USDA to

support a finding that her HHS application was made dishonestly. On the one hand, it is

clear that Respondent was told on March 23, 2007 to resign from USDA or be fired. On the

other hand, that was far from the last word in her complicated separation from the agency. It

appears that the purpose of the settlement of her discrimination claim may have been for her

to separate from USDA in a manner that did not carry any stigma. It seems reasonable to

believe that the settlement was intended to remove all mutual recriminations between

Respondent and USDA, rescinding not only the discrimination claims but the termination

and threat of termination that accompanied Respondent’s separation. This Committee does

not know, because the details of the final resolution of Respondent’s separation were not

placed in the record. Given our uncertainty, while Respondent may have made a

misrepresentation on her application for employment at HHS, Bar Counsel has not provided

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enough evidence to turn that speculative possibility into a finding of fact. Based on the

incomplete evidence available to us, we do not find that Respondent’s job application at HHS

contributed to a “pattern” of dishonesty.

IV. CONCLUSIONS OF LAW

A. Conflict of Interest (Rule 1.7(b)(4))

Bar Counsel has failed to establish that Respondent violated Rule 1.7(b)(4), which

provides that “a lawyer shall not represent a client with respect to a matter if . . . [t]he

lawyer’s professional judgment on behalf of the client will be or reasonably may be

adversely affected by the lawyer’s responsibilities to or interests in a third party or the

lawyer’s own financial, business, property, or personal interests.” Here, Respondent’s only

relevant client was USDA, and her representation of USDA consisted primarily of her work

on the Keepseagle case and the Hampton case. Up until March 22, 2007, Respondent’s

moonlighting activities as an EEO investigator had no more connection to her representation

of USDA than her fitness instructor work. Indeed, Bar Counsel appears to concede that the

only colorable conflict lies in Respondent’s “accepting and starting two EEO investigations

of USDA employees while she was on the USDA payroll.” BC Br. at 27 (emphasis in

original). This refers to the two cases DSZ assigned to Respondent on March 22, 2007, the

day Respondent accidentally filed the redlined version of the Hampton brief and the day

before she stopped working at USDA. Respondent was not called on to exercise any

professional judgment on behalf of USDA after March 23, 2007. She had resigned, and her

supervisors had her clean out her desk and leave. While USDA continued to pay Respondent

for an additional three weeks, she was not doing any legal work for USDA during that

interval.

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The authorities cited by Bar Counsel are inapposite. In re Elgin, 918 A.2d 362 (D.C.

2007), found a violation of Rule 1.7(b)(4) when the respondent in that case misused a client’s

credit card, which the client had authorized him to use as partial payment of legal fees, and

concealed his failure to make timely payments, which ultimately led to a lawsuit by the

lending bank and serious harm to the client’s credit rating. Respondent here had already

resigned (thereby terminating her representation of USDA) before she worked on any EEO

investigations on behalf of USDA. Respondent’s professionalism as an attorney representing

USDA in the Keepseagle and Hampton cases could not be compromised by EEO

investigations she conducted after she had ceased all work at USDA.

Bar Counsel argues that Respondent’s nondisclosure agreement with DSZ created a

potential conflict of interest, albeit a “speculative” one. BC Br. at 28. Conceivably, in the

course of investigating EEO complaints against agencies other than USDA, Respondent

might have come across some piece of information “relevant to USDA” which she would be

prevented from reporting to USDA. We agree with Bar Counsel that this is at best a

speculative possibility, and there is no evidence that it ever happened, was ever likely to

happen or was reasonably foreseeable. The logical result of Bar Counsel’s argument would

be that no lawyer could ever sign a nondisclosure agreement because there will always be a

theoretical possibility that it might prevent the lawyer from disclosing some information

relevant to a different client.

In re Shay, 756 A.2d 465 (D.C. 2000), involved a conflict resulting from joint

representation of two clients in an estate planning situation. As Bar Counsel admits, DSZ

was not Respondent’s client, and there was no dual representation here. BC Br. at 28. D.C.

Legal Ethics Op. 296 (Feb. 15, 2000), also cited by Bar Counsel, deals with joint

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representation of two clients, and moreover was significantly affected by the February 1,

2007 amendments to the D.C. Rules of Professional Conduct, including the elimination of

former Rule 2.2 and the addition of current Rule 1.6(d).

We have been unable to find any decision of the Court of Appeals finding a violation

of Rule 1.7(b)(4) or its predecessor, DR 5-101(A), 5-104(A) or 5-105(A) based on such an

attenuated and speculative conflict of interest as the execution of a nondisclosure agreement

when there is no actual conflict with a current client representation.

Bar Counsel has not proved that Respondent violated Rule 1.7(b)(4).

B. Commission of a Criminal Act (Rule 8.4(b))

Bar Counsel has failed to prove that Respondent committed a criminal act. Rule

8.4(b) states: “It is professional misconduct for a lawyer to . . . commit a criminal act that

reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other

respects . . . .” As the Court stated in In re Harkins, 899 A.2d 755, 759 (D.C. 2006) (quoting

comment 1 to D.C. Rule of Professional Conduct 8.4): “Although a lawyer is personally

answerable to the entire criminal law, a lawyer should be professionally answerable only for

offenses that indicate lack of those characteristics relevant to law practice. Offenses

involving . . . dishonesty [or] breach of trust . . . are in that category.”

Bar Counsel charges that by omitting her EEO investigations and other outside work

from Form 450 Respondent violated the federal false statements statute, 18 U.S.C. § 1001(a),

which provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent

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statement or entry, shall be fined not more than $ 10,000 or imprisoned not more than five years, or both.

In enforcing and interpreting 18 U.S.C. § 1001 and other federal criminal false statement

statutes, the courts have consistently required proof of specific intent, or mens rea. See, e.g.,

United States v. Wells, 519 U.S. 482, 499 (1997) (18 U.S.C. § 1014 “makes a false statement

. . . a crime only if the speaker knows of the falsity of what he says and intends it to

influence” the recipient); United States v. Gaudin, 515 U.S. 506 (1995) (materiality as well

as intent are elements of 18 U.S.C. § 1001 offense that must be decided by jury); Liparota v.

United States, 471 U.S. 419 (1985) (18 U.S.C. § 2024 requires proof that defendant had mens

rea, including knowledge that he had acquired food stamps in an illegal manner); United

States v. Yermian, 468 U.S. 63 (1984) (18 U.S.C. § 1001 requires proof that defendant made

knowing and material misrepresentations).

Bar Counsel has not met its burden of proving that Respondent “knowingly and

willfully” falsified her Form 450. It is not reasonable to infer that Respondent was trying to

conceal outside employment already known to her supervisors, such as her lunchtime fitness

classes at USDA or the EEO investigations Respondent discussed with her supervisors both

in her job interviews and in the copying machine episode of August 30, 2006. Respondent

admittedly was careless, and failed to include several outside activities that should have been

included in her Form 450; but this falls well short of “knowingly and willfully” seeking to

deceive the USDA.

Bar Counsel has not shown that Respondent violated Rule 8.4(b).

C. Dishonesty (Rule 8.4(c))

The final charge is that Respondent engaged in dishonesty in violation of Rule 8.4(c),

which states: “It is professional misconduct for a lawyer to . . . engage in conduct involving

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dishonesty, fraud, deceit, or misrepresentation.” “The term ‘dishonesty’ . . . includes

‘conduct evincing a lack of honesty, probity or integrity in principle; a lack of fairness and

straightforwardness.’” In re Cleaver-Bascombe, 892 A.2d 396, 404 (D.C. 2006) (quoting In

re Shorter, 570 A.2d 760, 767-68 (D.C. 1990) (citations omitted)). “Rule 8.4(c) is not to be

accorded a hyper-technical or unduly restrictive construction.” In re Ukwu, 926 A.2d 1106,

1113 (D.C. 2007). Omissions as well as affirmative misleading statements violate Rule

8.4(c). Shorter, 570 A.2d at 768. “Lawyers have a greater duty than other citizens to be

scrupulously honest at all times, for honesty is ‘basic’ to the practice of law.” In re Cleaver-

Bascombe, 986 A.2d 1191, 1200 (D.C. 2010) (quoting In re Hutchinson, 534 A.2d 919, 924

(D.C. 1987) (en banc) (citations omitted).

“Dishonesty” cannot exist without some degree of dishonest intent, although such

intent can be inferred in egregious cases. “[W]hen Bar Counsel presents clear and convincing

evidence that an action is obviously wrongful and intentionally done, the performing of the

act itself is sufficient to show the requisite intent for a violation. However, when the act

itself is not of a kind that is clearly wrongful, or not intentional, Bar Counsel has the

additional burden of showing the requisite dishonest intent.” In re Romansky, 825 A.2d 311,

315 (D.C. 2003). See, e.g., In re Daniel, 11 A.3d 291 (D.C. 2011) (respondent violated Rule

8.4(c) by opening a phony IOLTA account in order to hide money from the IRS); Cleaver-

Bascombe, 986 A.2d 1191, 1200 (D.C. 2010) (attorney disbarred for (among other

misconduct) filing a fraudulent expense voucher and then compounding the offense by false

testimony about the voucher in the disciplinary proceeding); In re Hutchinson, 534 A.2d 919,

924 (D.C. 1987) (en banc) (respondent committed insider trading and then lied to the

Securities and Exchange Commission to cover it up).

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In some cases, a showing of recklessness is sufficient to establish a Rule 8.4(c)

violation. “To show recklessness, Bar Counsel must prove by clear and convincing evidence

that the respondent ‘consciously disregarded the risk’” of wrongful action. In re Romansky,

938 A.2d 733 (D.C. 2007) (quoting In re Anderson, 778 A.2d 330, 335 (D.C. 2001)); see also

In re Jones-Terrell, 712 A.2d 496, 499-500 (D.C. 1998) (where the respondent filed a

guardianship petition containing false statements, these misrepresentations “were of such

significance to the issues before the court that we believe her conduct was at least reckless

and sufficient to sustain a violation of [Rule 8.4(c)]” notwithstanding respondent’s

inexperience and haste in preparing the petition).

Bar Counsel charges Respondent with three episodes of dishonesty: concealing her

outside EEO investigation work from her supervisors, omitting it from her federal Form 450,

and concealing her employment at USDA from DSZ. BC Br. at 21-22.

Concealment. The evidence does not support a charge that Respondent dishonestly

concealed her outside work as an EEO investigator from her superiors. While the résumé she

submitted to USDA was current only to March 2006, before Respondent began doing EEO

investigations, it is undisputed that Respondent discussed her EEO investigation work with

Ms. Leland and, probably, with Ms. Bumbary-Langston, during the interview process. It is

not clear from the testimony that either Ms. Leland or Ms. Bumbary-Langston told

Respondent unequivocally that she would have to stop the EEO work if she accepted the

temporary appointment to work on the Keepseagle case, which did not involve any EEO

issues. In August 2006, when Respondent inadvertently left some EEO investigative

documents on a USDA copier, Ms. Bumbary-Langston’s first reaction was to reprimand

Respondent for endangering the privacy of the employee being investigated and for doing

31

non-USDA work while she was on the clock at USDA. Respondent’s e-mail apologizing for

the copy machine incident made clear that she was doing EEO investigations in her spare

time and intended to continue doing so.

The testimony of Respondent and Ms. Bumbary-Langston is directly contradictory on

the question whether Ms. Bumbary-Langston later instructed Respondent to cease all outside

EEO investigations. However, even if (as we have found) Ms. Bumbary-Langston orally

instructed Respondent to stop doing outside EEO work, Respondent’s mere disobedience

would not support any of the charges in this case. Bar Counsel has not presented evidence

that Respondent’s outside EEO investigations for agencies other than USDA were prohibited

by any statute or federal regulation, or would otherwise have justified USDA in withholding

approval under the CBA or 5 C.F.R. Parts 2635 and 8301. Apparently Respondent’s current

employer, HHS, has no objection to such outside activities. Thus, while Respondent may

intentionally have disobeyed her supervisor, disobedience did not constitute dishonesty or

violate Rule 8.4(c).

Form 450. Bar Counsel invites us to infer that Respondent’s deficient Form 450

filing was done to conceal her ongoing outside EEO work. This would be a very serious

charge, if proven. The problem is that Respondent omitted most of her 2006 employment,

including her employment with Leftwich & Ludaway, which had been disclosed in her

résumé; her work as an EEO investigator before joining USDA, which she had discussed

with Ms. Leland and Ms. Bumbary-Langston; her various fitness instructor positions, which

she disclosed to her supervisors in connection with a request for flexible working hours; and

her ongoing EEO investigations, and intent to continue them, disclosed in Respondent’s

August 30, 2006 e-mail to Ms. Bumbary-Langston. Omitting from Form 450 the outside

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activities already known to USDA concealed nothing. To the contrary, it was asking for

trouble. The inference that Respondent intended to conceal current EEO investigations by

omitting past, disclosed investigations is not viable. Respondent may have been a

disobedient employee with serious performance issues, but she was not dishonest.

The troubling fact remains that Respondent, an officer of the Court, filed an

inaccurate Form 450. This was a wrongful act, falling well short of the standards required of

all federal employees and, a fortiori, lawyers employed by the federal government. While

we credit Respondent’s testimony that she filled out the form inaccurately because she was

preoccupied with trial preparation, that is no excuse. The question we have to answer is

whether Respondent’s obvious carelessness rose to the level of recklessness necessary to

make out a violation of Rule 4.8(c).

Romansky, 938 A.2d 733, addressed a somewhat similar situation. The respondent in

that case, a partner at a major law firm, overbilled clients by adding a “premium” to their

bills. The law firm had recently adopted a “premium” billing policy, but not all clients had

agreed to the practice. The respondent added a premium to the bills of two clients who had

not agreed to a premium, and he did not bother to check to see whether or not the clients had

agreed. The Court of Appeals credited the respondent’s testimony that he had no dishonest

intent, but the court grappled with the question whether the respondent had acted recklessly

by not checking the clients’ engagement letters before sending the premium bills. The

respondent:

admittedly never focused on or even considered the content of the applicable engagement letters, but at best, assumed that he could charge these clients a premium without taking the time – or asking anyone else to take the time – to confirm his assumption about the written terms of the applicable engagement letters. The respondent’s willful ignorance of their content would support a

33

conclusion that the respondent acted in conscious disregard of a readily apparent risk that he would be charging a premium without the knowledge and consent of his clients, and that he had therefore acted recklessly pursuant to Rule 8.4(c). In the end the question is whether we can conclude by “clear and convincing” evidence that the recklessness standard has been met. Because we view the facts as virtually in equipoise, we cannot conclude that . . . the respondent’s actions . . . were dishonest and in violation of Rule 8.4(c).

Id. at 741-742, emphasis in original.

Here, Respondent carelessly failed to make complete and accurate disclosures. She

could have and should have filled out Form 450 properly. The fact that she was preoccupied

with the Hampton case explains her carelessness, but it cannot excuse her negligence. The

excuses of the respondent in Romansky were similarly deficient: the premium billing policy

was new, the procedures were confusing, some clients had already agreed to pay premium

rates, the respondent was busy and had responsibility for sending out millions of dollars in

bills, and so on. None of this could possibly excuse overbilling a client; but nevertheless the

Court of Appeals concluded that Bar Counsel had not shown by clear and convincing

evidence that respondent was reckless as opposed to “merely” negligent. By a narrow

margin the Committee reaches the same conclusion here. Respondent did not violate Rule

8.4(c) by filing an incomplete Form 450.

DSZ. The charge that Respondent was dishonest with DSZ is not supported by the

evidence. Respondent submitted her March 2006 résumé to DSZ when applying online for

work in November 2006. The résumé did not disclose any employment after January 2006; it

did not disclose any activity of any kind after March 2006. DSZ asked no questions about

Respondent’s current employment and chose not to interview her. They sent her a contract

and nondisclosure agreement that contained no prohibition against government employment.

DSZ’s witness admitted that Respondent’s contract with DSZ did not contain any prohibition

34

against government employment. Respondent never accepted a USDA EEO investigation

until the day before her separation from USDA. Thus, while Respondent’s résumé was out

of date when she sent it to DSZ, we do not agree with Bar Counsel that she was intentionally

dishonest with DSZ.

The allegations of dishonesty beyond those in the Specification of Charges also are

unconvincing. The record concerning Respondent’s unsuccessful claims for unemployment

is fragmentary at best, and it appears that Respondent ultimately was denied unemployment

compensation based on her poor attendance and performance at USDA, not any act of

colorable dishonesty. Absenteeism and poor job performance are not “dishonest” in the

sense of Rule 8.4(c). Similarly, based on the lack of information in this record about the

settlement of Respondent’s discrimination complaint against USDA, we cannot conclude that

Respondent’s job application to HHS misrepresented the final status of her disputed

separation from USDA.

Bar Counsel has not met its burden of proving by clear and convincing evidence that

Respondent violated Rule 8.4(c).

V. RESPONDENT’S ALTERNATIVE “RECIPROCAL DISCIPLINE” ARGUMENT

Respondent argues that the dismissal of charges against Respondent by Maryland Bar

Counsel in Attorney Grievance Commission of Maryland v. Peterkin, No. CAE08-25193

(Md. 2009), RX 1-3, mandates the dismissal of these proceedings as a matter of reciprocal

discipline under D.C. Rule XI § 11, which requires the imposition of reciprocal discipline

unless specified conditions exist. There is a rebuttable presumption that the discipline will be

the same in the District of Columbia as it was in the original disciplining jurisdiction, In re

35

Meaden, 902 A.2d 802, 810-11 (D.C. 2006). The Court of Appeals has repeatedly

recognized that principles of collateral estoppel are applicable in reciprocal discipline cases.

See, e.g., id. (“Relitigation of the issues in this jurisdiction would be inconsistent with

principles of collateral estoppel.”); In re Shearin, 764 A.2d 774, 777 (D.C. 2000) (“Having

been afforded [due process] in the jurisdiction in which discipline was originally imposed,

[respondent] is not free to relitigate in the District of Columbia adverse findings made by the

Supreme Court of Delaware.”); In re Klein, 747 A.2d 1179, 1181 (D.C. 2000) (same); In re

Benjamin, 698 A.2d 434, 440 (D.C. 1997) (“Under principles of collateral estoppel, in

reciprocal discipline cases we generally accept the ruling of the original jurisdiction.”)

All of the cited cases involve “offensive” collateral estoppel, in which Bar Counsel,

in effect, prevents a respondent from relitigating issues that respondent has already litigated

and lost in another jurisdiction. See Parklane Hosiery v. Shore, 439 U.S. 322 (1979). This

case (with one interesting exception discussed below) does not involve offensive collateral

estoppel. It is Respondent who, by analogy to “defensive” collateral estoppel, seeks to

prevent Bar Counsel from “relitigating” issues that Respondent litigated and substantially

won in another jurisdiction. Defensive collateral estoppel applies in cases where a single

plaintiff loses on an issue in one forum and then seeks to relitigate it in another forum. See,

e.g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313

(1971). Obviously this doctrine does not apply here, since Bar Counsel has not previously

brought these charges against Respondent. While reciprocal discipline ordinarily causes Bar

Counsel, the Board and the Court of Appeals to defer to disciplinary rulings by other

jurisdictions, this occurs as a matter of comity, not issue preclusion. In re Perrin, 663 A.2d

517, 522-23 (D.C. 1995), acknowledged the presumption in favor of reciprocal discipline but

36

concluded: “Because we are not prepared to construe Section 11 (c) [of Rule XI] as requiring

us to permit foreign discipline to trump the results of an exhaustive original disciplinary

proceedings [sic] here, we agree with the Board that reciprocal discipline need not be

imposed in this case.”

In the present case, there has been a full original disciplinary proceeding. This

Committee is not bound by the findings in the Maryland proceeding. Defensive collateral

estoppel does not apply to Bar Counsel’s charges. In the strictest sense of evidentiary rules

the Maryland findings are hearsay. But as strict evidentiary rules do not apply here, we have

considered the Maryland proceedings, and largely agree with their findings and conclusions.

A brief discussion is helpful.

The Maryland court considered only the allegation that Respondent had falsified her

Form 450. RX 3 at 7. Apparently there was no charge in Maryland based on Respondent’s

alleged failure to disclose her federal employment to DSZ, nor was there a charge that

Respondent violated the rule against conflicts of interest. The Maryland proceeding

considered an additional charge of “conduct prejudicial to the administration of justice,”

which was dismissed.

The Maryland court found that Respondent had committed no crime and therefore

had not violated Maryland Rule 8.4(b), which appears substantially the same as District of

Columbia Rule 8.4(b). RX 3 at 7-8. Essentially the Maryland court determined that

Respondent did not “knowingly and willfully” falsify Form 450. While this Committee did

not rely on the Maryland proceedings in reaching our findings and conclusions, they are

substantially similar and entirely consistent.

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The Maryland court found that Respondent did not “engage in conduct involving

dishonesty, fraud, deceit” under the Maryland version of Rule 8.4(c), but nevertheless found

Respondent in violation of Maryland Rule 8.4(c) in that she “fail[ed] to report all other

employment for the reporting period required in Form 450.” RX 3 at 11. This conclusion

was based on the holding of Att’y Griev. Comm. v. Pennington, 876 A.2d 642, 657 (Md.

2005) that “misrepresentation under [the Maryland version of] section [8.4](c) does not

require specific intent.” RX 3 at 9. However the Pennington case, which involved an

attorney disbarred for repeated misrepresentations to her client and others, does not appear

dispositive here. The respondent in Pennington may not have had the specific intent to

defraud, but she certainly had the general intent to mislead her clients.

We must decide whether the Maryland court’s finding that Respondent violated

Maryland’s Rule 8.4(c) has a collateral estoppel effect against Respondent. Arguably it may,

at least as to findings of fact. The issue appears to have been fully litigated, and we agree

with the Maryland court that Respondent submitted an inaccurate Form 450. But we are not

convinced that the Maryland court’s conclusion of law, that negligent filing of the Form 450

violated Rule 8.4(c) in Maryland, mandates the same conclusion under District of Columbia

law. As the discussion of In re Romansky shows, supra, our Court of Appeals requires at

least a showing of recklessness to support a violation of Rule 8.4(c), and neither the

Maryland court nor this Committee has found that Respondent was reckless.

VI. RECOMMENDATION

Bar Counsel has not proved by clear and convincing evidence that Respondent

violated District of Columbia Rules of Professional Conduct Rules 1.7(b)(4) (conflict of

interest), 8.4(b) (commission of a criminal act), or 8.4(c) (dishonesty). The facts as to the

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Rule 8.4(c) charge are “virtually in equipoise” under the analysis of In re Romansky, 938

A.2d 733 (D.C. 2007) but fall short of a showing of recklessness. We recommend that the

charges against Respondent be dismissed. This recommendation is consistent with the

dismissal of comparable charges by the Maryland Bar Counsel. However, contrary to

Respondent’s argument, it is not mandated by any requirement of collateral estoppel or

reciprocal discipline.

AD HOC HEARING COMMITTEE

By: /JCP/ John C. Peirce, Esquire

Chair By: /DB/

David Bernstein Public Member By: /RE/

Ronnie Edelman, Esquire Attorney Member

Dated: July 21, 2011