DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

In the Matter of: : :

STEPHEN T. YELVERTON, : : Board Docket No. 11-BD-069 Respondent. : Bar Docket No. 2010-D128 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 264044) :

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

This matter comes before the Board on Professional Responsibility (the “Board”) on a

Specification of Charges alleging that Respondent violated D.C. Rules of Professional Conduct

1.1(a), 1.1(b), 3.1, and 8.4(d). By a two to one vote, an Ad Hoc Hearing Committee (the

“Hearing Committee”) comprised of Eric R. Fox, Esquire, Chair, Deniece Fields, Esquire,

attorney member, and David Bernstein, public member, found no violations and recommended

that the Specification of Charges be dismissed. Mr. Bernstein filed a dissenting statement, in

which he concluded that Respondent violated each of the charged Rules, and should be

suspended for 30 days with a requirement to prove fitness as a condition of reinstatement. Upon

consideration of the record and the oral argument, the Board finds that Respondent violated each

of the charged Rules and recommends that he be suspended from the practice of law for 90 days

with a fitness requirement.

I. FINDINGS OF FACT

The Board has reviewed the Findings of Fact made by the Hearing Committee, which are

supported by substantial evidence in the record as a whole and set forth below with certain

changes. Specifically, the Board has added details to the Hearing Committee’s findings in order

to expand upon the chronology of events and place Respondent’s conduct in context. We cite to

the record before the Hearing Committee for our additional findings that are supported by clear

and convincing evidence.1

A. The Criminal Case Before Judge Cushenberry

Respondent is a member of the Bar of the District of Columbia Court of Appeals, having

been admitted on April 10, 1979. BX A.2 Beginning in or about April 2009, he represented a

third-party witness, Michael Snow, who was the alleged victim of a simple assault by Mary

Carrick. FF 10-11 at 9;3 BX D1 at 7, ¶ 54. Prior to representing Snow, Respondent had no

criminal defense experience. FF 13 at 9; Tr. at 191-194.4

On April 21, 2009, the United States Attorney for the District of Columbia filed an

Information alleging that “[o]n or about March 21, 2009, Mary E. Carrick unlawfully assaulted

and threatened Michael Snow in a menacing manner.” FF 10 at 9; BX 1 (Ex. 2 therein). Judge

Harold Cushenberry, Jr., sitting without a jury, presided over the criminal case involving this

alleged assault in the Superior Court of the District of Columbia (Case 2009 CMD 009194) on

August 17, 2009, and found Carrick not guilty. FF 14 at 9; BX 1 (Ex. 4 therein).

1 Board Rule 13.7 provides that “the Board may affirm, modify, or expand the findings and recommendation of the Hearing Committee. . . . When reviewing the findings of a Hearing Committee the Board shall employ [a] ‘substantial evidence on the record as a whole’ test. When making its own findings of fact, the Board shall employ a ‘clear and convincing evidence’ standard.” 2 Bar Counsel’s Exhibits are referred to herein as “BX __.” 3 The Hearing Committee’s Findings of Fact are referred to herein as “FF __ at __.” 4 The transcript of the hearing that took place on February 1, 2012 is referred to herein as “Tr. at __.”

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Respondent charged Snow a fee of $3,000 to represent him in the criminal matter and on

related issues. The fee was not allocated to any particular services rendered. He devoted

approximately $20,000 of his time to his representation of Snow. FF 11-12 at 9; Tr. at 188, 190-

91. During the course of the trial, Carrick’s counsel, Kirk C. Smith, issued a subpoena to

Respondent demanding the production of certain of Snow’s financial records. Respondent

represented Snow in the matter and Judge Cushenberry denied enforcement of the subpoena. FF

15 at 9; Tr. at 24-25, 207.

On August 24, 2009, following the verdict, Respondent filed on Snow’s behalf a Request

for Mistrial to Be Declared in the Carrick case. Respondent alleged, among other things, that

Snow had standing “based upon the United States Constitution, First Amendment, right to

petition the government for a redress of grievances,” and that Snow also had “standing under the

United States Constitution, Article III, Section 2, Clause 1, as ‘aggrieved’ by the actions of the

United States Attorney in failing to subpoena two essential witnesses.” FF 17 at 9-10; BX 1 (Ex.

6 therein). Respondent also attempted to offer new evidence in the form of an affidavit from an

individual named Craig Moran stating that Carrick had told him that she did, in fact, strike Snow

and therefore was lying at her trial when she denied under oath that she had not done so. Id.

On September 16, 2009, Judge Cushenberry issued an Order denying Respondent’s

Request for Mistrial, and asserting that, because of her acquittal, Carrick’s double jeopardy rights

had attached and she could not be retried. FF 18 at 10; BX 1 (Ex. 7 therein). On September 23,

2009, Respondent filed on Snow’s behalf, a Motion to Vacate Order and to Impose Sanctions.

Respondent requested that Judge Cushenberry’s Order be vacated in the “interests of justice.”

He also outlined a long list of alleged ethical lapses on the part of Smith that he asserted had

“irreparably tainted” the Carrick case, and requested that Smith be sanctioned by the court.

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Respondent again raised the Moran affidavit, noting that Judge Cushenberry had not referred to

the affidavit in his Order denying the request for a mistrial. FF 19 at 10; BX 1 (Ex. 8 therein).

Judge Cushenberry denied Respondent’s Motion to Vacate Order and to Impose

Sanctions on September 28, 2009 stating, among other things, that the motion was “frivolous.”

FF 20 at 10; BX 1 (Ex. 10 therein). On October 5, 2009, Respondent filed a motion to vacate

Judge Cushenberry’s September 28, 2009 Order and a motion for the judge to recuse himself.

FF 21-22 at 10-11; BX 1 (Ex. 11-12 therein). In support of the recusal motion, Respondent

attached an affidavit from Snow alleging “upon information and belief” that he believed Judge

Cushenberry was biased against him due to an ex parte communication that the judge had with

the prosecutor and a letter that the judge received from Smith accusing Snow of being a liar. FF

22 at 11; BX 1 (Ex. 12 therein). On November 2, 2009, Respondent filed a Supplemental

Motion to Recuse alleging that recusal was required upon the filing of a legally sufficient

affidavit alleging that the judge was biased. FF 23 at 11; BX 1 (Ex. 14 therein).

On March 15, 2010, Judge Cushenberry issued an Order referencing the many motions

filed by Respondent and Smith in which they accused each other of ethical misconduct, and

noting that they were “lengthy, repetitive, and rather casually styled.” FF 24 at 11; BX 1 (Ex. 15

therein). Judge Cushenberry denied all of Respondent’s outstanding motions “for lack of factual

or legal support” and because “Snow does not have standing as a non-party to challenge an order

in a criminal proceeding.” Id. He further noted that “Snow’s motions for recusal are wholly

without merit.” BX 1 (Ex. 15 therein).

On March 26, 2010, Respondent filed a Notice of Appeal of Judge Cushenberry’s Order

of March 15, 2010 with the D.C. Court of Appeals. FF 25 at 11; BX 1 (Ex. 16 therein). On

April 29, 2010, the Court of Appeals, in a per curiam Order, dismissed Respondent’s appeal and

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further ordered that a cross-motion filed by Smith asking that Respondent be sanctioned be

denied. FF 26 at 12; BX 1 (Ex. 17 therein).

The Court of Appeals thereafter denied Respondent’s petition for rehearing of its

dismissal of his appeal. FF 28 at 12; BX 1 (Ex. 18 therein). Respondent and Smith filed further

motions with the Court of Appeals. The Court of Appeals issued an Order stating that “the

conduct of counsel for both appellant Snow and cross-appellant Carr[i]ck raise serious concerns

as to the propriety of the actions taken and judgment exercised by both and the matter is hereby

referred to Bar Counsel for investigation in that regard.” FF 29 at 12; BX 1 (Ex. 19 therein).

Despite the admonition of the Court of Appeals, on June 28, 2010, Respondent filed a petition

with the Court for rehearing en banc of the order dismissing his previously filed appeal. FF 30 at

12; BX 3.

B. The Charges and Proceedings Before the Hearing Committee

On October 13, 2011, Bar Counsel filed with the Board a Specification of Charges

alleging that Respondent violated the following Rules: Rule 1.1(a), in that Respondent failed to

provide competent representation to a client; Rule 1.1(b), in that Respondent failed to serve a

client with the skill and care commensurate with that generally afforded clients by other lawyers

in similar matters; Rule 3.1, in that Respondent filed frivolous motions for which there was no

basis in law and/or fact and no good faith argument for an extension, modification, or reversal of

existing law; and Rule 8.4(d) in that Respondent engaged in conduct that seriously interfered

with the administration of justice. BX B. The gravamen of the charges was that Respondent had

filed numerous frivolous motions and pleadings with the D.C. Superior Court and Court of

Appeals in the Carrick case on behalf of his third-party witness client, Snow.

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On November 14, 2011, Respondent, who appeared pro se in this proceeding, filed a

pleading captioned “Answers of Respondent, Affirmative Defenses, Exculpatory and Mitigating

Defenses, Request for Appointment of Independent Counsel, and Request for Disqualification of

Prosecutor.” BX D1. He filed a Supplement to Answers and Affirmative Defenses of

Respondent on November 16, 2011. BX D2. On November 21, 2011, Respondent filed a further

supplement to his affirmative defenses.5 BX D3.

Respondent’s Answer to the Specification of Charges asserted, among other things, that

an independent counsel should be appointed to investigate ethics charges against Smith and that

the Assistant Bar Counsel should be disqualified from representing Bar Counsel in this matter.

BX D1 at 15-16, 23-26. In particular, Respondent contended that “[u]pon information and

belief, Attorney Smith has had a previous professional relationship with Bar Counsel, and

personal friendships with staff members.” Id. at 16. Respondent further contended that the

Assistant Bar Counsel had been arrested some years back for disorderly conduct, for which he

had been released and never tried, and that he had subsequently brought a civil lawsuit against

certain parties involved in his arrest. Id. at 23-24. Respondent asserted that as a result of these

events, the Assistant Bar Counsel should be disqualified. Id. at 24-26.

On December 7, 2011, the Chair of the Ad Hoc Hearing Committee denied both requests.

The Chair’s Order also noted that Respondent had neither admitted nor denied each of the

allegations contained in the Specification of Charges, and directed him to file a Supplemental

Answer that clearly and succinctly responded to the allegations. FF 1 at 6. On December 15,

2011, Respondent filed a supplemental answer to Bar Counsel’s Specification of Charges in

which he included many of the facts alleged in the initial response and offered a general denial of

5 Respondent has represented himself pro se throughout these proceedings. See, e.g., Tr. at 94.

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the charges. BX D4; FF 2 at 7. Respondent also contended that there was a “manifest necessity”

exception to double jeopardy that was applicable to the Carrick case and supported Respondent’s

motion for a mistrial in the matter. Id.

Respondent’s supplemental answer filed on December 15, 2011, included a section

addressing pre-trial matters. Among other things, Respondent sought a pre-trial deposition of the

complainant, a dismissal of the charges against him based upon the refusal of Bar Counsel to

investigate Smith, additional documentation from Bar Counsel, and the payment of expert

witness fees based upon his indigent status. BX D4 ¶¶ 85, 90, 91-92, 94. On January 6, 2012,

the Hearing Committee issued an order denying as moot Respondent’s request for the further

production of documents, and denying his motion for a pre-trial deposition of the complainant,

because Respondent had failed to make the requisite showing of a compelling need for such

discovery. See Board Rule 3.2. On January 9, 2012, the Board Chair issued an order denying

Respondent’s request that the Board assume his expert witness costs, because Respondent had

failed to proffer any information concerning the witness’s identity or the nature of the witness’s

testimony.

The Hearing Committee heard the matter on February 1, 2012. Bar Counsel’s Exhibits A

to D, 1-1 to 1-19 and 2 to 4 were received into evidence. Tr. at 175-176. Respondent submitted

Exhibits A-Z, which were received into evidence. Id. at 230.

Bar Counsel called one witness, Francis D. Carter, Esquire. FF 4 at 7. Carter graduated

from George Washington University Law School in 1972, and has been a member of the D.C.

Bar since 1973. Among other things, from 1978-1985 Carter was the Deputy Director and then

Director of the Public Defender Service for the District of Columbia. Since his years with the

Public Defender Service, Carter has been engaged primarily in the practice of criminal defense

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law, either in solo practice or in practice with one or more other lawyers. Carter estimated that

he has handled hundreds of criminal cases in the District of Columbia courts. He has been a

guest lecturer on criminal law practice and procedure at various local universities, and has been a

faculty participant in the Harvard Law School intensive trial advocacy program. He was selected

as a Fellow of the American College of Trial Lawyers, and served on the District of Columbia

Board on Professional Responsibility for eight years. FF 4 at 7-8.

Bar Counsel offered Carter as an expert in criminal practice and criminal procedure in the

District of Columbia, and he was accepted in that capacity. Bar Counsel specifically did not

offer Carter as an expert with respect to the alleged violation of the ethics rules involved in this

case. FF 5 at 8. Carter opined that Respondent did not provide competent representation to

Snow, that his conduct fell well short of the skill that other lawyers would have afforded their

clients, and that he did not have a non-frivolous basis to seek to reopen and then appeal an

acquittal in a criminal case, or to assert that a non-party to a criminal case had standing to reopen

it. Tr. at 89-91. He also opined that the effect on the judicial system as a result of Respondent’s

multiple filings in the Superior Court and Court of Appeals was to expend unnecessary judicial

time and effort, both by Judge Cushenberry and multiple judges of the Court of Appeals, in

reviewing his pleadings, making judgments, and rendering opinions or orders denying his

requests for relief. Id. at 91-92. The Hearing Committee credited Carter’s expert opinion. FF 7

at 8.

Respondent offered no witnesses but volunteered to take questions from members of the

Hearing Committee, and subjected himself to cross-examination by the Assistant Bar Counsel.

FF 6 at 8. Respondent testified that following Carrick’s acquittal, Snow was concerned that

Carrick would seek to have the U.S. Attorney’s Office bring charges against him for perjury.

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Carrick and her attorney Smith had allegedly threatened Snow in this regard. Tr. at 197-199.

Respondent subsequently learned that a witness, Moran, could support Snow’s account and thus

could put a stop to any criminal prosecution. Id. at 199-200. Respondent believed that the U.S.

Attorney’s Office was not sympathetic towards Snow and thus he determined that the best

strategy to protect Snow’s interests was to seek a mistrial.6 Id. at 201-204. He testified that

following Judge Cushenberry’s denial of the motion for a mistrial, he filed subsequent motions

to vacate the ruling in order to defend Snow and himself from attacks that were made in

opposition pleadings filed by Smith on behalf of Carrick. Id. at 204-210.

After receiving the parties’ documentary exhibits and hearing the testimony, the Hearing

Committee announced its preliminary, non-binding determination that Bar Counsel had

presented evidence sufficient to find a violation of one or more of the charges. Id. at 238; see

Board Rule 11.11. Neither Bar Counsel nor Respondent submitted evidence in mitigation or

aggravation of sanction at the hearing. Following the hearing, Respondent filed certain

statements in mitigation which were accepted by the Hearing Committee in an Order dated

March 2, 2012. On April 20, 2012, Respondent filed newly published materials from the D.C.

Bar Continuing Legal Education Program as to ethics issues set forth in the Specification of

Charges. On May 4, 2012, the Hearing Committee accepted the materials for filing.

Prior to the Hearing Committee issuing its Report and Recommendation, Respondent

filed several motions directly with the Board, including a “Demand for the Office of Bar Counsel

to Withdraw the Specification of Charges and for its Actions to be Investigated by the Board on

6 Carter testified that if an attorney representing a witness has any concerns about his client being prosecuted for perjury, he should approach the U.S. Attorney’s Office to seek clarification. If he is not satisfied, he can work his way up the chain of command and approach supervisors within the Office. In Carter’s opinion, Respondent’s failure in taking these basic steps demonstrated his incompetence, and his tactic of instead seeking a mistrial after an acquittal had no chance of success and was ill-informed. Tr. at 102-109.

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Professional Responsibility” (May 21, 2012); a “Request for Extraordinary Relief” to preclude

Bar Counsel from proceeding with any further matters against Respondent (June 7, 2012); an

“Extraordinary Request for Dismissal with Prejudice of Specification of Charges” based upon

alleged newly discovered evidence of misconduct by the Office of Bar Counsel (June 25, 2012);

and a pleading that included a “Request for Consent for the Removal of this Proceeding to the

United States District Court” (August 6, 2012). In Orders dated June 28, 2012 and August 28,

2012, the Board denied Respondent’s demands and requests.

On August 24, 2012, the Hearing Committee issued its Report and Recommendation,

finding that Bar Counsel had not established by clear and convincing evidence that Respondent

had violated the Rules and recommending dismissal, with Mr. Bernstein dissenting. On August

29, 2012, Bar Counsel filed an exception to the Hearing Committee’s Report. On September 4,

2012, Respondent filed exceptions to the Hearing Committee’s Report, notwithstanding its

recommendation of dismissal, and to the Dissenting Statement.

Oral argument was held before the Board on November 29, 2012.

II. CONCLUSIONS OF LAW

A. Rule 1.1(a)

Bar Counsel charged that Respondent violated D.C. Rule of Professional Conduct 1.1(a)

by failing to provide competent representation to Snow. Rule 1.1(a) states: “A lawyer shall

provide competent representation to a client. Competent representation requires the legal

knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

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The Hearing Committee concluded that Bar Counsel had not established by clear and

convincing evidence that Respondent violated Rule 1.1(a). HC Rpt. at 6 ¶ 11, 15.7 The Hearing

Committee acknowledged that Respondent was mistaken in his belief that his various motions

would be effective, that he exhibited shortcomings in his representation of Snow, and that his

efforts to assist Snow were raised in the wrong forum. HC Rpt. at 15. Nevertheless, the Hearing

Committee determined that Respondent’s “efforts . . . were sincere and deeply felt.” Id. The

Hearing Committee also found that it could not brand Respondent as an incompetent lawyer

inasmuch as “he has practiced law for over 30 years after being found competent to do so by the

District of Columbia bar examiners.” Id. at 14.

Further, the Hearing Committee found that the fact that Snow had not been harmed by

Respondent’s conduct should be taken into consideration. Id. at 15. In reaching this conclusion,

the Hearing Committee cited to In re Evans, 902 A.2d 56, 69-70 (D.C. 2006). In Evans, the

Court of Appeals found that a violation of Rule 1.1(a) required “a serious deficiency in the

representation[,]” and that “what constitutes a ‘serious deficiency’ is fact specific. It has

generally been found in cases where the attorney makes an error that prejudices or could have

prejudiced a client and the error was caused by a lack of competence.” Id.

The Board disagrees with the Hearing Committee’s conclusion that Respondent did not

violate Rule 1.1(a).8 Respondent filed pleadings with the Superior Court and Court of Appeals

that he knew, or should have known, were frivolous. Respondent did not have a good faith basis

7 The Report and Recommendation of the Ad Hoc Hearing Committee is referred to herein as “HC Rpt. at __.” 8 We do not dispute the Hearing Committee’s Findings of Fact. Rather, as more fully set forth herein, we take issue in certain respects with the Hearing Committee’s analysis and its application of the facts to the law. The Board reviews questions of law and ultimate facts, making its own determination, which the Court in turn reviews de novo. In re Anderson, 778 A.2d 330, 339 n.5 (D.C. 2001).

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to seek a new trial for Carrick, since double jeopardy plainly precluded a new trial for a

defendant who had been acquitted. See United States v. Allen, 755 A.2d 402, 407 (D.C. 2000)

(citing United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 41 L.Ed. 300 (1896)).

Respondent likewise had no basis to seek to appeal Judge Cushenberry’s rulings on the issue,

especially after Judge Cushenberry made clear that Respondent’s motions were “frivolous.” BX

1 (Ex. 10 therein). Respondent further violated the rule in seeking en banc consideration by the

Court of Appeals, even after the Court questioned his judgment and referred the matter to Bar

Counsel for an investigation. BX 1 (Ex. 19 therein); BX 4.

It is undisputed that Respondent had no prior experience in the area of criminal defense.

Tr. at 192-193. The Comments to Rule 1.1(a) make clear that an attorney may delve into an area

in which he lacks experience, but in doing so should “associate or consult with, a lawyer of

established competence in the field in question” or “through necessary study” be sufficiently

competent to adequately represent an individual. See Comments 1-2 to Rule 1.1(a). Here, while

Respondent purportedly spent a number of hours on Snow’s matter, Tr. 188-189, he apparently

did not seek assistance from an established criminal defense attorney or sufficiently research the

issues so that he would be competent to represent Snow following the acquittal of Carrick.

Respondent’s arguments underscore the lack of competence he demonstrated in his

representation of Snow. In contending that his client had standing to file a post-hearing motion

for a mistrial, Respondent cited to two cases, Leeke v. Timmerman, 454 U.S. 614 (1981) (per

curiam) and Jackson v. New York State, 381 F.Supp.2d 80 (N.D.N.Y. 2005), and asserted that

Snow had standing under the U.S. Constitution Article III, Section 2, Clause 1. BX 1 (Ex. 6

therein). Leeke, however, held that “a private citizen lacks a judicially cognizable interest in the

prosecution or non-prosecution of another.” Leeke, 454 U.S. at 85-86 (quoting Linda R.S. v.

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Richard D., 410 U.S. 614, 619 (1973)). Jackson was a First Amendment case that involved an

alleged conspiracy to deprive the plaintiff in a civil case of her constitutional rights. Jackson,

381 F.Supp.2d at 83. These cases plainly do not provide a third party with standing to seek a

mistrial in a criminal case. Finally, Respondent contended that Snow was aggrieved by the

actions of the U.S. Attorney in failing to subpoena two essential witnesses and that Snow

otherwise had standing under the U.S. Constitution. BX 1 (Ex. 6 therein). That Snow was

disenchanted with actions by the government, however, obviously does not imbue him with

standing to seek a re-trial of an acquitted defendant.

Respondent further cited to Rules 26.3 and 33 of the Superior Court Rules of Criminal

Procedure as the appropriate procedural foundation for his seeking a mistrial. Id. Yet Rule 26.3

concerns the procedure for the consideration of a mistrial during the trial of a case, not after, and

Rule 33 involves the procedure for a new trial after a conviction and only “[o]n a defendant’s

motion[.]” Accordingly, as with the cases and Constitutional references Respondent relied upon,

it is clear that neither of these rules permit a witness to seek a mistrial in a criminal case

following an acquittal.

Finally, in his Motion to Vacate Order and Impose Sanctions, BX 1 (Ex. 8 therein),

Respondent contended that an acquittal could be set aside for “manifest necessity.” Even the

cases cited by Respondent, however, stand for the time-honored principle that manifest necessity

can justify a new trial only before a verdict is reached. United States v. Dixon, 913 F.2d 1305,

1310-11 (8th Cir. 1990); United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). Respondent

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cites to no cases where manifest necessity has been found to be grounds for a mistrial following

an acquittal. None exist.9

In essence, Respondent failed to engage in the thoroughness and preparation reasonably

necessary for the representation due to his lack of experience, skill and knowledge in the area of

criminal law, which constituted a serious deficiency in the representation. Respondent’s actions

were similar to the actions of other attorneys who have been found to have violated Rule 1.1(a).

See, e.g., In re Boykins, 748 A.2d 413 (D.C. 2000) (per curiam) (lawyer who had no prior

experience in conservatorships and took on representation without educating himself as to the

applicable rules violated Rule 1.1(a)); In re Sumner, 665 A.2d 986 (D.C. 1995) (per curiam)

(appending Board Report) (lawyer whose lack of experience in criminal appeals led to a number

of mistakes violated Rule 1.1(a)).

Respondent’s conduct did not merely constitute a series of careless errors or mistakes.

Respondent is an experienced practitioner who should have been able to sufficiently research and

comprehend basic principles of criminal law or, in the alternative, seek assistance from a

practitioner more experienced than he. At best, Respondent failed to engage in the appropriate

research and take the time to understand basic principles of criminal law, and did not seek

guidance from others. Instead, he filed a series of frivolous motions and appeals, even after

9 Respondent’s Motion to Recuse, filed on October 5, 2009, and related supplemental motions, were also entirely devoid of merit. BX 1 (Ex. 12-14 therein). Respondent claimed that Judge Cushenberry was biased on the grounds that a certain inflammatory post-trial submission had been made by counsel for Carrick in which Snow was accused of being a liar, and that (on information and belief) the Assistant U.S. Attorney had engaged in an ex parte communication with the judge in which he cast blame on Snow for the result in the trial. These activities would have occurred post-trial, so they could not have had an effect on the trial itself. In any event, the alleged comments made by the prosecutor to the judge, and the statements by defense counsel, do not approach the kind of personal bias necessary to establish the need for a recusal. In re Bell, 373 A.2d 232, 234 (D.C. 1977). Judge Cushenberry was right to find that Respondent’s motions for recusal were “wholly without merit.” BX 1 (Ex. 15 therein).

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being told by the Superior Court and the Court of Appeals that his filings were problematic. In

doing so, he put his client at risk of sanctions from two courts, and exposed his client to the

possibility of Carrick seeking sanctions or bringing claims for having incurred further legal

expenses and suffering the uncertainty attendant to additional legal proceedings. We find that

Bar Counsel established a violation of Rule 1.1(a) by clear and convincing evidence in that

Respondent’s failures constituted a serious deficiency in the representation of his client, and that

his client could have been prejudiced by Respondent’s failure to represent him competently.

B. Rule 1.1 (b)

Bar Counsel charged Respondent with a violation of Rule 1.1(b), which states that “[a]

lawyer shall serve a client with skill and care commensurate with that generally afforded to

clients by other lawyers in similar matters.”

The Hearing Committee concluded that Bar Counsel had not established a violation of

Rule 1.1(b) by Respondent by clear and convincing evidence. HC Rpt. at 6 ¶ 11, 16. In its

analysis, the Hearing Committee determined that there are some lawyers “at the bottom of the

class who are not as competent as others, but being among the lesser lights of the profession does

not equate with an ethics violation.” Id. at 16. The Hearing Committee conceded that

Respondent’s efforts in the Carrick case were “hopeless” and that he may have been

“unquestionably wrong,” but asserted that this “is not enough to warrant discipline without

something more.” Id.

We disagree with the Hearing Committee’s conclusion and find that Respondent violated

Rule 1.1(b). The question is not where along the continuum of skill in the legal profession

Respondent falls. Rather, the question is whether Respondent served his client, in this situation,

with the skill and care that one would expect a lawyer to afford his client. Respondent was

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deficient in that regard.10 It is expected that a lawyer will understand the basic rules of law in an

area in which he chooses to practice. Here, Respondent advanced legal theories on which he had

no chance of succeeding on behalf of his client. His client was disserved by Respondent’s lack

of care. In the circumstances, we find that Bar Counsel has proved a violation by Respondent of

Rule 1.1(b) by clear and convincing evidence.

C. Rule 3.1

Bar Counsel charged Respondent with a violation of Rule 3.1, which states that “[a]

lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless

there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith

argument for an extension, modification, or reversal of existing law.”

The Hearing Committee found no violation of Rule 3.1. HC Rpt. at 6 ¶ 11, 17. In doing

so, the Hearing Committee relied on a number of factors. As a threshold matter, the Hearing

Committee cited to Section 110 of the Restatement (Third) of the Law Governing Lawyers

(1998), Comment b, which states that “disciplinary enforcement against frivolous litigation is

rare[,]” and that “[m]ost bar disciplinary agencies rely on the courts in which the litigation occurs

to deal with abuse.” Id. at 17. The Hearing Committee noted and apparently found compelling

that neither Judge Cushenberry nor the Court of Appeals imposed sanctions against Respondent.

Id. at 17-18.

The Hearing Committee also determined that Respondent did not file his pleadings to

harass or cause harm to anyone or to seek unreasonable delay for any purpose. Id. at 19. It also

10 Bar Counsel’s expert, Mr. Carter, testified that Respondent did not demonstrate the skill and care that one would expect from a lawyer representing a client in a criminal case in the District of Columbia. Tr. at 89-90.

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found that while Respondent no doubt “annoyed” several judges, it is “highly unlikely that they

were seriously overburdened.” Id.

The Hearing Committee reviewed the case law in the District, and found that there were

no cases in which there had been a finding of a violation of Rule 3.1 absent significant harm to a

person or to the administration of justice, which the Hearing Committee found was not present

in this case. Citing to In re Spikes, 881 A.2d 1118 (D.C. 2005) and In re Thyden, 877 A.2d 129

(D.C. 2005), the Hearing Committee determined that the case law required a higher threshold of

harm or risk to the client. HC Rpt. at 19-21. The Hearing Committee also found that a Rule 3.1

violation can only occur if the alleged frivolous filings are “accompanied by something more,

namely some malevolent purpose.” Id. at 17.

The Hearing Committee misconstrued the standard for establishing a violation of Rule

3.1. Proof of a violation does not require a showing of prejudice to the client or the

administration of justice or proof of a respondent’s wrongful intent. Instead, a violation is

determined using an objective test. Thus, the case law makes clear that a filing is frivolous under

Rule 3.1 if, after an objective appraisal of the merits, a reasonable attorney would conclude that

there was “not even a faint hope of success on the legal merits.” In re Spikes, 881 A.2d at 1125

(internal quotation marks omitted). We have no doubt that Respondent’s actions in representing

Snow violated this objective standard.

We accordingly conclude that Bar Counsel has established by clear and convincing

evidence that Respondent violated Rule 3.1. The Hearing Committee placed far too much

emphasis on the Restatement. While it may be true that discipline for the filing of frivolous

motions is rare, Rule 3.1 exists for a reason, as evidenced by a number of recent cases in our

jurisdiction finding a violation of the Rule. In addition to Spikes and Thyden, see, e.g., In re

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Pelkey, 962 A.2d 268, 280 (D.C. 2008). Moreover, the fact that the Superior Court and the Court

of Appeals did not sanction Respondent is of no moment. The question is simply whether the

Rule has been violated and, indeed, that the Court of Appeals saw fit to refer the matter to Bar

Counsel evidences the Court’s concern with the conduct of Respondent and belief that an

investigation into his conduct was warranted. It hardly suggests that the Court found his conduct

to comply with our ethical standards.

Relying on the clear findings of Judge Cushenberry and the Court of Appeals, as well as

Carter’s expert testimony, the Hearing Committee correctly concluded that Respondent’s filings

had no prospect of hope on the merits. HC Rpt. at 13 (“Respondent had no basis in law for filing

all of his motions in the Carrick case”); at 14 (Respondent “represented his client with vigor and

dedication in a manner that was doomed to failure from the outset”); at 16 (describing

Respondent’s strategy as a “hopeless effort”). Nor was Respondent arguing for a reasonable

extension or modification of existing law. The law that double jeopardy bars retrial following an

acquittal has been settled for decades, and although Respondent was informed by the court that

his pleadings were frivolous, he continued to file additional pleadings nevertheless. Moreover,

although there is nothing in the rule or case law that requires a particular level of harm, or any

harm at all, to a person or to the administration of justice, there is no question that significant

harm occurred here. As a result of Respondent’s conduct, judges of the Superior Court and the

Court of Appeals had to expend considerable time reviewing Respondent’s frivolous pleadings,

and Carrick had to respond to all of Respondent’s filings.

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D. Rule 8.4(d)

Bar Counsel charged Respondent with a violation of Rule 8.4(d), which states that “[i]t is

professional misconduct for a lawyer to: . . . engage in conduct that seriously interferes with the

administration of justice[.]”

In order to violate Rule 8.4(d), a lawyer’s conduct must be: 1) 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. In re Uchendu, 812 A.2d 933, 940 (D.C. 2002)

(citing In re Hopkins, 677 A.2d 55, 60-61 (D.C. 1996)). “All that 8.4(d) requires is conduct that

taints the process or potentially impacts upon the process to a serious and adverse degree.” Id. at

941 (emphasis in original) (internal quotation marks omitted).

In this case, Respondent’s conduct significantly tainted the judicial process. He filed a

number of frivolous motions in two courts, causing the courts to expend considerable time and

energy reviewing his pleadings and determining the course of action to take. There is little

question that the filing of such pleadings encumbers the judicial process in a more than de

minimis way. See Pine View Gardens, Inc. v. Jay’s Frosted Foods, Inc., 299 A.2d 536, 537 n.2

(D.C. 1973) (per curiam) (‘“Appellate courts are burdened by a heavy volume of business and

the problem is needlessly aggravated when frivolous appeals are taken.’”); In re Grant, 635 F.3d

1227, 1230 (D.C. Cir. 2011) (“Like frivolous complaints in the district court, frivolous petitions

in the courts of appeal ‘tie up the courts, waste valuable judicial and legal resources, and affect

the quality of the justice enjoyed by the law-abiding population’”). Here, as explained by Bar

Counsel’s expert, Mr. Carter: “There was a lot of time and effort expended by Judge

Cushenberry on the Superior Court level and by multiple judges on the District of Columbia

Court of Appeals to review [Respondent’s] pleadings, to make judgments and to render opinions

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or memorandum order[s] denying his pleadings.” Tr. at 91-92. All of the pleadings, in Mr.

Carter’s view, were frivolous, and Respondent did not have a good faith basis to file them. Id. at

89-91.

Respondent’s conduct also tainted the judicial process by forcing an acquitted criminal

defendant, Carrick, to have to expend needless time and resources defending against frivolous

post-trial motions. Accordingly, we find that Bar Counsel has established a violation of Rule

8.4(d) by clear and convincing evidence.

III. RECOMMENDED SANCTION

We take the following factors into account in determining the appropriate sanction: (1)

the seriousness of the misconduct; (2) the prejudice, if any, to the client that resulted from the

misconduct; (3) whether the misconduct involved dishonesty; (4) violation of other provisions of

the disciplinary rules; (5) the attorney’s disciplinary history; (6) whether or not the attorney has

acknowledged his wrongful conduct; and (7) aggravating or mitigating circumstances. In re

Martin, No. 11-BG-775, slip op. at 47 (D.C. March 28, 2013) (citing In re Elgin, 918 A.2d 362,

376 (D.C. 2007)); see also In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc). The

appropriate sanction is one that is necessary to protect the public and the courts, maintain the

integrity of the profession, and deter other attorneys from engaging in similar misconduct. See

In re Scanio, 919 A.2d 1137, 1144 (D.C. 2007). The sanction imposed must be consistent with

cases involving comparable misconduct. See D.C. Bar R. XI, § 9(h)(1); In re Elgin, 918 A.2d at

373; In re Berryman, 764 A.2d 760, 766 (D.C. 2000).

Our review of the factors listed above leads us to conclude that a suspension is warranted.

Respondent’s misconduct was serious. He filed not one, but several frivolous pleadings in our

court system, burdening the courts and causing Carrick to spend additional time and effort in

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responding to the pleadings. He also placed his client at risk of potential sanctions. Respondent

has evinced an unapologetic attitude throughout the proceedings, refusing to acknowledge the

wrongfulness of his conduct and insisting that his actions were entirely appropriate. We find

Respondent’s attitude troubling in light of his plain abuse of the judicial process.

There are a number of cases in which sanctions have been imposed for the kinds of

violations at issue here. In the Spikes and Thyden cases, for example, 30-day suspensions were

imposed. Spikes’ conduct, filing a frivolous defamation claim against a person who had filed a

complaint against him with Bar Counsel, required excessive briefing by the parties and interfered

with the administration of justice. 881 A.2d at 1127. Thyden’s clients, like Respondent’s,

lacked standing to file certain pleadings, and he placed his clients at risk of sanctions by filing

frivolous pleadings in a bankruptcy proceeding. 877 A.2d at 144. Thyden, however, unlike

Respondent, ultimately acknowledged that his clients lacked standing. Id. at 142.

Bar Counsel requests that Respondent be suspended for a period of 90 days, while the

dissenting Hearing Committee member recommends a 30-day suspension. We agree with Bar

Counsel that a 90-day suspension is appropriate. Respondent’s conduct was at least as egregious

as the misconduct in Spikes and Thyden, especially since Respondent failed to heed multiple

warnings concerning his filings and has shown an utter lack of appreciation for the wrongfulness

of his conduct. A 90-day suspension is appropriate.

The question whether to impose a fitness requirement as a condition of reinstatement is a

difficult one. We are mindful that a fitness requirement means that the lawyer may not be able to

resume the practice of law in the District for a considerable length of time, until he is able to

establish his rehabilitation. Appropriately, the standard for the imposition of fitness is high:

“[T]o justify requiring a suspended attorney to prove fitness as a condition of reinstatement, the

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record in the disciplinary proceeding must contain clear and convincing evidence that casts a

serious doubt upon the attorney’s continuing fitness to practice law.” In re Cater, 887 A.2d 1, 6

(D.C. 2005).

In ascertaining whether this standard is met, we are guided by the factors set forth in In re

Roundtree, 503 A.2d 1215 (D.C. 1985). Those factors include: “1) the nature and circumstances

of the misconduct for which the attorney was disciplined; 2) whether the attorney recognizes the

seriousness of the misconduct; 3) the attorney’s conduct since discipline was imposed, including

the steps taken to remedy past wrongs and prevent future ones; 4) the attorney’s present

character; and 5) the attorney’s present qualifications and competence to practice law.” Id. at

1217.

In this case, Respondent’s activities severely impaired the administration of justice. Not

only did he ignore the rulings of judges of our courts and file patently frivolous pleadings, he

continued the same course of conduct in these proceedings. While this matter was pending

before the Hearing Committee, Respondent tried to remove the case to federal court, appealed

the remand order to the D.C. Circuit, and requested an emergency stay of these proceedings. He

sought rehearing and rehearing en banc when his appeal was dismissed, and filed a petition for

certiorari with the U.S. Supreme Court when rehearing was denied. Respondent also requested

that an independent counsel be appointed to investigate opposing counsel in the underlying

litigation, and that the Assistant Bar Counsel be disqualified.

Respondent’s frivolous filings escalated before the Board, including a demand that Bar

Counsel withdraw the Specification of Charges. On August 6, 2012, he requested the Board’s

permission to remove the case to federal court for an investigation of Bar Counsel’s conduct in

the case. He continued to argue before the Board that Snow had the right to seek a mistrial

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following Carrick’s acquittal although he cannot cite a single case that actually supports his

argument. Respondent’s Brief at ¶ 134. Respondent’s numerous filings after oral argument

resulted in the issuance of a February 5, 2013 Board Order prohibiting any further filings. After

that Order issued, Respondent filed two pleadings in the Court of Appeals, a petition for

extraordinary writ arguing that the Specification of Charges should be vacated under the doctrine

of res judicata, and a petition for writ of mandamus, requesting that the Court order the Board to

consider the filings rejected in the February 5 barring Order. Accordingly, far from taking steps

to remedy past wrongs and prevent future ones, Respondent has demonstrated that he has yet to

appreciate the wrongfulness of his conduct and that it is likely to recur.

In the circumstances present here, there is a serious doubt as to whether Respondent will

act ethically and competently in the future, and thus we conclude that a fitness requirement

should be imposed. See, e.g., In re White, 11 A.3d 1226, 1252 (D.C. 2011) (per curiam)

(appending Board Report) (“conduct in this matter does not demonstrate the ethical sensitivity

required for practice, and [Respondent] is a prime candidate for future problems if the Bar does

not intervene at this juncture”); In re Lea, 969 A.2d 881, 893 (D.C. 2009) (Respondent’s

“testimony, tone, and behavior [during the disciplinary proceedings] demonstrated a lack of

contrition or appreciation for the seriousness of her conduct.”).

IV. CONCLUSION

Having found that Bar Counsel has proven by clear and convincing evidence that

Respondent violated Rules 1.1(a), 1.1(b), 3.1, and 8.4(d), the Board recommends that the Court

find the foregoing violations and impose a sanction of a 90-day suspension, with the requirement

that Respondent demonstrate his fitness to practice law as a condition of reinstatement. For

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reinstatement purposes, the suspension should be deemed to run from the date Respondent files

an affidavit in compliance with D.C. Bar R. XI, § 14(g).

BOARD ON PROFESSIONAL RESPONSIBILITY

By:_________/ELY/______________________________ Eric L. Yaffe Dated: July 30, 2013 All members of the Board concur in this Report and Recommendation except for Mr. Frank, who is recused, and Mr. Carter and Ms. Soller, who did not participate.

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