David D. Travers v. United States

• Court: District of Columbia Court of Appeals
• Decided: October 8, 2015
• Docket: 13-BG-1501
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-BG-1501

IN RE ANDRE P. BARBER, RESPONDENT.

A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 466138)

On Report and Recommendation of the Board on Professional Responsibility (BDN-7-06)

(Argued October 2, 2014 Decided October 8, 2015)

Andre P. Barber, pro se.

Julia L. Porter, Senior Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.

Before FISHER and BECKWITH, Associate Judges, and NEBEKER, Senior Judge.

PER CURIAM: Respondent Andre Barber opposes the Board on Professional

Responsibility‟s unanimous recommendation that he be disbarred from the practice

of law in the District of Columbia. Mr. Barber was found to have violated sixteen

Rules of Professional Conduct. We are not persuaded by Mr. Barber‟s arguments

on appeal, and we accept the Board‟s recommendation of disbarment. 2

This appeal involves three separate disciplinary matters that were

consolidated after two Hearing Committees found several rule violations. In the

first matter, Mr. Barber was accused of violating Rule of Professional Conduct 3.1

(asserting and pursuing frivolous claims) and Rule 8.4 (d) (seriously interfering

with the administration of justice) for his actions in pro se litigation with his

residential landlord. The Board found that Mr. Barber filed several “groundless

and repetitive pleadings and appeals, which were intended to increase his

opponent‟s fees, and had that effect.” When those appeals reached our court, we

called his claims “frivolous” and stated that “[w]e do not believe that appellant

reasonably could have entertained the faintest hope of prevailing on the merits of

this appeal” and that “the trial court characterized the argument he presents on

appeal as „crazy.‟” Mr. Barber was subsequently sanctioned by the trial court, but

he never paid the roughly $87,000 of legal fees incurred by his landlord.

In the second matter, Mr. Barber was accused of violating fourteen Rules of

Professional Conduct—thirteen that were sustained by the Board—during his

representation of three clients in litigation against their landlord, Tenacity Group,

LLC. Several charges arose from statements Mr. Barber made and actions he took

while attempting to collect his legal fees from his clients and from Tenacity

directly. These included misrepresentations to an arbitrator that the fee was not in

fact contingent; statements breaching the settlement agreement, which resulted in 3

his clients losing their valuable settlement; threats to report counsel for Tenacity to

the bar if counsel did not pay him; and “[l]aunch[ing] a [l]itigation [b]arrage

[a]gainst Tenacity” that one trial judge called “highly disturbing” and “baseless.”

In addition, Mr. Barber was found to have failed to communicate with a client

regarding the client‟s appeal and to have used an improper trade name.

The third matter against Mr. Barber consisted of allegations of misconduct

during Bar Counsel‟s investigation—primarily false statements. Mr. Barber was

also cited for his “palpable disdain” and failure to adhere to Hearing Committee

orders during the formal disciplinary proceedings.

I.

Together, the two Hearing Committees found that Mr. Barber had

committed all seventeen of the rule violations of which he had been accused, and

the Board adopted these findings except for the alleged violation of Rule 1.4 (b).

Mr. Barber now challenges these findings on myriad grounds.1

First, Mr. Barber challenges a number of his false statement violations as

lacking substantial evidence. See In re Robinson, 74 A.3d 688, 694 (D.C. 2013)

1 The Board noted that Mr. Barber‟s “litany of arguments [is] reminiscent of the frivolous claims and tactics that resulted in the charges against him.” 4

(Court of Appeals “must accept the factual findings of the Hearing Committee,

unless they are not supported by substantial evidence in the record”). As to two

charges, Mr. Barber‟s argument relies on his assertion that witnesses gave false

testimony during the hearing. But “[t]his court is in no position to overturn [the

Committee‟s] factual findings when . . . the Committee observed the witnesses,

questioned them and assessed their truthfulness.”2 In re Kanu, 5 A.3d 1, 11 (D.C.

2010) (internal quotation marks omitted). As to other charges, Mr. Barber‟s

arguments—even if true—are inconsequential.3 We are satisfied that there is

substantial evidence that Mr. Barber made several material misrepresentations in

several different contexts and, even if he cannot be properly found to have made

one or two particular false statements, there is substantial evidence that he violated

each of the rules he has been accused of violating.

Mr. Barber claims that his Fifth Amendment right against self-incrimination

2 Nor do we have any occasion to consider Mr. Barber‟s allegation that Bar Counsel “is still knowingly making false arguments in its brief” on appeal. The two Hearing Committees found the facts as they did, and the Board affirmed them as being supported by substantial evidence. We cannot upset that determination by second-guessing the factfinder‟s credibility assessment. 3 We do reject Bar Counsel‟s assertion that “[a]ll the factual findings that Respondent challenges are based on the Committees‟ credibility determinations.” For example, Mr. Barber‟s attempt to prove that he “never stated that the Court of Appeals „directed him to file a motion to correct errors‟” by pointing to record evidence has no issues of credibility intertwined. 5

was violated when the Hearing Committee called him as a witness. Unlike in a

criminal trial, however, Mr. Barber did not have a Fifth Amendment right to

decline to take the witness stand. He instead was free to invoke his Fifth

Amendment right on a question-by-question basis if, in responding to a question,

Mr. Barber would be providing evidence that could be used to convict him of a

crime. See Miss. State Bar v. Attorney-Respondent, 367 So. 2d 179, 185 (Miss.

1979); In re Baun, 232 N.W.2d 621, 624-25 (Mich. 1975); cf. Littlejohn v. United

States, 705 A.2d 1077, 1083 (D.C. 1997) (noting that the “absolute right not to

testify” is limited to criminal defendants).4

Mr. Barber further argues that the Specification contains charges regarding

the Barber v. Potomac Place Assocs. litigation beyond those alleged in the

4 Mr. Barber also argues that the Board did not have authority to order him to be a witness, but Board Rule 11.2 permits the chair to “question the participant for the purpose of clarifying matters raised at the hearing.” Mr. Barber‟s argument that the rule cannot be used to “transform an adversarial hearing into an inquisition” is meritless given that, as just discussed, he was always free to invoke his Fifth Amendment right in response to specific questions.

Nor can Mr. Barber fairly contend that Bar Counsel could not charge him with lying based on testimony he was “compelled” to make. The Constitution gives Mr. Barber the right to refuse to answer questions that may incriminate him. In re Artis, 883 A.2d 85, 103 (D.C. 2005). It does not give him the right to lie. United States v. Wong, 431 U.S. 174, 178 (1977). 6

Informal Admonition he rejected, a violation of Board Rule 6.4.5 This is because

the proposed Informal Admonition focuses exclusively on Mr. Barber‟s frivolous

appeal in this court in that case, while the Specification makes additional

allegations of rule violations stemming from Mr. Barber‟s conduct in Superior

Court in relation to that case. The Board concluded that these allegations were not

additional “charges” because they did not assert violations of different rules,

instead contending that “the Specification of Charges simply provided a more

comprehensive and detailed description of the facts supporting those charges [and

therefore] did not violate Board Rule 6.4.” Even assuming that the Board erred by

including what were really additional charges under the guise of a more complete

factual description, any error would be harmless. The record contains substantial

evidence that Mr. Barber violated both Rules 3.1 and 8.4 (d) during the Potomac

Place appeal, as we noted that his appeal was “frivolous.” That the Hearing

Committee might have inappropriately considered additional conduct that also

happened to violate Rules 3.1 and 8.4 (d) did not prejudice Mr. Barber. Unlike in a

criminal case, Mr. Barber did not receive multiple “convictions” for multiple

violations—the Board merely delineates which rules he violated and recommends

a sanction accordingly. There is no question that Mr. Barber violated Rules 3.1

5 Mr. Barber cites Board Rule 6.5, but presumably means Rule 6.4. 7

and 8.4 (d) in conduct that was properly before the Board.

Mr. Barber next argues that he received insufficient notice of the charges

against him because the Specification was “nothing more than a „shotgun

pleading‟” that did not adequately explain which factual assertions were used to

justify which rule violations. Despite Bar Counsel‟s assertions to the contrary, Mr.

Barber does not merely seek a more “detailed statement of the facts.” Rather, his

complaint is that the facts are not matched up with alleged rule violations, so it is

impossible to know, for example, “which client Barber purportedly damaged and

what specific actions Barber performed or failed to perform that caused damage to

the unidentified client” to support the vague charge that he “intentionally

prejudiced or damaged a client.” Mr. Barber‟s point is well taken. The Hearing

Committee might well have erred in finding that a bill of particulars was “not

warranted” because the Specification “clearly” sets forth the facts “[f]ollowed” by

a list of the rules alleged to be violated. Rather, a bill of particulars might have

been useful to Mr. Barber to link the allegations to the rule violations. Mr.

Barber‟s claim, however, is not that a bill of particulars was erroneously denied 6—

it was that his constitutional right to due process was violated. Although his point

6 We therefore need not decide what relief would be warranted from such a determination on appeal. 8

regarding the deficiency of the Specification is well grounded, we are not

convinced that Mr. Barber‟s constitutional rights were violated. At the outset of

the hearing, Bar Counsel briefly went through each charge and explained which

facts in particular supported each charge.7 More clarity in the Specification would

have been better, but the Constitution does not require it. See In re Winstead, 69

A.3d 390, 397 (D.C. 2013) (holding that due process is satisfied when “the

Specification of Charges gave respondent notice of the specific rules she allegedly

violated, as well as notice of the conduct underlying the alleged violations”).

Mr. Barber‟s allegation that Bar Counsel violated due process by “coaching

an adverse witness” is likewise without merit. Mr. Barber cannot show that any

witness was improperly “coached.” We reject Mr. Barber‟s claim that it was

improper to allow a witness to refresh his recollection of a conversation in which

that witness participated. Cf. Hawthorne v. United States, 504 A.2d 580, 586 n.15

(D.C. 1986) (recognizing that Fed. R. Evid. 612, which allows for refreshing

recollection of a witness on the stand, “reflects long-standing District of Columbia

practice”).

7 This occurred in response to the panel chair‟s request that Bar Counsel “give us some preliminary guidance as to which of the events and situations that you expect to prove will support, at least in part, the various alleged rule violations in paragraph 168, so that we can be alert to that as we‟re hearing the evidence in your attempts to prove these charges.” 9

Mr. Barber next argues that he did not have an “opportunity to respond” to

the allegations against him as required by various rules—specifically, that he did

not have the opportunity to respond in writing under Board Rule 2.8 and that he

did not have the opportunity that Bar Rule XI § 6 (a)(2) affords him to respond to

the allegations. Mr. Barber had sufficient opportunity to respond to the allegations

in person before two separate Hearing Committees, he did in fact respond in

writing in an “Answer to the Specification of Charges” dated August 30, 2010, and

we have already concluded that Mr. Barber‟s due process rights were not violated.

Mr. Barber had all the opportunity to respond to which he was entitled.

We reject Mr. Barber‟s equal protection claim that he was unfairly targeted

by Bar Counsel, who refused to initiate a formal investigation against counsel for

Tenacity at Mr. Barber‟s behest. Even assuming that Bar Counsel needed a

“rational basis” for its decision not to prosecute Mr. Barber‟s complaint against

counsel for Tenacity, its conclusion that there was “„insufficient evidence‟ to

warrant a formal investigation” against counsel for Tenacity sufficiently explains

its actions.

We are also not convinced by Mr. Barber‟s argument that the Specification

of Charges did not comply with the oath requirement of D.C. Code § 11-2503 (b)

(2012 Repl.). Bar Counsel verified that “I do affirm that I verily believe the facts 10

stated in the Specification of Charges to be true.” As the Board correctly noted,

“This is the same oath, by the same person, that the Court of Appeals specifically

approved in In re Morrell, 684 A.2d 361, 365-67 (D.C. 1996).” Mr. Barber‟s

attempt to distinguish Morrell, claiming we “merely ruled that Bar Counsel‟s oath

need not be based on personal knowledge,” is unavailing. If the sworn statement

need not be based on personal knowledge, we are not persuaded that the oath

requires more “facts to support why Bar Counsel‟s belief should be deemed

reliable,” as Mr. Barber argues.

Mr. Barber argues that the Hearing Committee‟s failure to issue its report

within 120 days violated his right to due process and was prejudicial. The 120-day

rule is “directory, rather than mandatory,” however. Morrell, 684 A.2d at 370.

Mr. Barber‟s argument that the Hearing Committee erred by failing to entertain his

motions to dismiss is also without merit because, as the Hearing Committee noted,

a Hearing Committee is not authorized to rule on such a motion but must instead

include a recommended disposition in its report to the Board. In re Ontell, 593

A.2d 1038, 1040 (D.C. 1991); Board Rule 7.16 (a).

Finally, Mr. Barber argues that the sanction of disbarment was “procedurally

improper” and that Bar Counsel “may not argue for disbarment because it failed to

file exceptions to the Hearing Committee reports and neither Hearing Committee 11

recommended disbarment.” This argument is contrary to our case law. In In re

Foster, 699 A.2d 1110, 1112 (D.C. 1997), this Court adopted the Board‟s

recommendation of disbarment when two Hearing Committees had each

recommended lesser sanctions. Bar Counsel did not file any exceptions in that

case, either. Id. at 1110. The Board there noted that “[n]either of the committees

was aware of the proceedings heard by the other committee. Presumably, the

sanction recommendation would have been more severe had all of the matters been

heard by a single committee.” Id. at 1112. And the Board further explained that

[u]nder [this] Court‟s ruling in Matter of Thompson, 492 A.2d 866, 867 (D.C. 1985), where two or more separately docketed matters are before the Board involving the same respondent, the question as to sanction should be: If all the matters were before the Board simultaneously, what would be its recommendation as to the appropriate discipline?

Id. The Board then recommended disbarment, and we accepted the

recommendation. Id. at 1110.

This is the proper procedure for the Board to follow when determining

sanctions in cases in which separate matters become consolidated. The Board‟s

recommendation of disbarment is thus not procedurally barred, and, for the reasons

set out in the Board‟s report, we hereby order Mr. Barber‟s disbarment from the

practice of law in the District of Columbia. For the purposes of seeking 12

reinstatement, the period of disbarment shall not be deemed to commence until Mr.

Barber files an affidavit that conforms to the requirements of D.C. Bar R. XI, § 14

(g).

So ordered.