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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-BG-0565
IN RE KENNETH BLACKWELL, RESPONDENT.
A Suspended Member of the Bar of the District of Columbia (Bar Registration No. 441413)
On Report and Recommendation of the Board on Professional Responsibility (Disciplinary Docket No. 2016-D396) (Board Docket No. 24-BD-037)
(Argued April 19, 2023 Decided April 2, 2026)
Kenneth L. Blackwell, pro se.
Hamilton P. Fox, III, Disciplinary Counsel, with whom Julia L. Porter, Deputy Disciplinary Counsel, Theodore (Jack) Metzler, Senior Assistant Disciplinary Counsel, and Jelani C. Lowery, Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.
Before EASTERLY, MCLEESE, and SHANKER, Associate Judges.
PER CURIAM: In August 2023, this court suspended respondent Kenneth L.
Blackwell from the practice of law in the District of Columbia for six months with
all but sixty days stayed in favor of three years of probation with conditions
recommended by the District of Columbia Board on Professional Responsibility
(Board). In suspending Mr. Blackwell, we assumed based on his concession that he 2
violated D.C. R. Prof. Conduct 3.4(c) by failing to comply with court orders that
required him to pay child support, and we concluded that Mr. Blackwell violated
D.C. R. Prof. Conduct 8.1(a) by knowingly making a false statement to the Office
of Disciplinary Counsel (ODC) during its investigation. In re Blackwell, 299 A.3d
561 (D.C. 2023). The matter is now back before us on a motion by ODC to revoke
Mr. Blackwell’s probation. See D.C. Bar R. XI, § 3(a)(7); Bd. Pro. Resp. R. 18.3.
The conditions of Mr. Blackwell’s probation required him to begin making
monthly child support payments on a schedule that would fully satisfy his
obligations by the end of the probation term and to provide ODC with the payment
schedule and evidence demonstrating his compliance with the schedule. Blackwell,
299 A.3d at 567-68, 574. Mr. Blackwell signed an order provided to him by the
Board setting forth the terms of his probation, agreeing that he would “begin to make
monthly payments pursuant to a schedule and in an amount sufficient to fully satisfy
his child support obligations (including any current arrearage) by the end of the
probationary period” and provide ODC with “a statement from the Virginia
Department of Child Support Enforcement [VDCSE] showing his compliance with
the payment schedule, or evidence showing that he has made the payments required
under the schedule,” every three months. The Board order stated that if Mr.
Blackwell “has not satisfied his child support obligations by the end of the probation,
he will be required to serve the stayed portion of the suspension and will be required 3
to fully satisfy his child support obligations prior to reinstatement.”
In June 2024, ODC initiated probation revocation procedures, asserting that
Mr. Blackwell had not provided ODC with any statements from the VDCSE
showing compliance with a payment schedule and that the VDCSE records showed
that Mr. Blackwell had not made any payments to the VDCSE since the suspension
order. We referred the matter to an Ad Hoc Hearing Committee pursuant to Bd. Pro.
Resp. R. 18.3(c) (and we extended Mr. Blackwell’s probation period until the matter
is resolved).
After a three-day hearing, the Hearing Committee issued a Report and
Recommendation concluding that ODC proved by a preponderance of the evidence
that Mr. Blackwell violated the conditions of his probation by virtue of his “near
total failure to pay child support.” The Hearing Committee recommended that Mr.
Blackwell’s probation be revoked, that he be suspended from the practice of law for
the four months of suspension that was stayed, and that his reinstatement be
contingent on his having made all required child support payments to appropriate
child support agencies.
Mr. Blackwell filed exceptions and, in a Board Report and Recommendation,
the Board adopted the Hearing Committee Report and Recommendation, concluded
that ODC met its burden of proving by a preponderance of the evidence that Mr. 4
Blackwell violated the conditions of his probation, and recommended the same
sanction that the Hearing Committee did. Mr. Blackwell then filed exceptions in
this court.
We agree with the Board that the evidence established by a preponderance
that Mr. Blackwell violated the conditions of his probation requiring him (1) to make
monthly child support payments pursuant to a schedule and in an amount sufficient
to fully satisfy his child support obligations (including any current arrearage) by the
end of the probationary period and (2) to provide ODC with statements showing his
compliance with the payment schedule. We also adopt the Board’s recommended
sanction.
I. Background
A. Factual Background
The background leading to Mr. Blackwell’s suspension and probation based
on violations of Rules 3.4(c) and 8.1(a) is set forth in In re Blackwell, 299 A.3d 561,
and we will not repeat it here. With respect to Mr. Blackwell’s compliance with his
probation conditions, the Ad Hoc Hearing Committee made the following findings
of fact, which are largely undisputed and which we adopt, mindful of our obligation
to “accept the findings of fact made by the Board unless they are unsupported by 5
substantial evidence of record.” D.C. Bar R. XI, § 9(h)(1).
Mr. Blackwell was required as a condition of his probation to begin making
monthly child support payments no later than thirty days after entry of this court’s
suspension order. He did not do so. He made no child support payments in 2023
and made one payment of $100 to the D.C. Office of Child Support in October 2024.
Mr. Blackwell never made regular monthly payments in an amount sufficient to fully
satisfy his child support obligations.
The total amount of child support Mr. Blackwell owed as of the time of the
Hearing Committee Report and Recommendation was in dispute. Mr. Blackwell,
however, never sought to have a court modify an arrearage amount of $83,400
reflected in VDCSE records, and he did not prove amounts that he estimated he paid
directly to the mother of his child, Cinzia Allen. Nor did Mr. Blackwell provide
ODC with a payment schedule reflecting a plan to fully satisfy his child support
obligations by the end of the probationary period or a statement from the VDCSE
showing compliance with a payment schedule.
Mr. Blackwell knew that he could make payments through a state agency
other than Virginia’s. He never, however, asked the VDCSE if he should make
payments to another child support enforcement authority, nor did he request that his
probation terms be amended or modified to allow him to make payments to another 6
child support enforcement authority. The Hearing Committee found not credible
Mr. Blackwell’s testimony that he did not know that he could make payments to the
D.C. Office of Child Support until October 2024, when he made one payment of
$100, and Mr. Blackwell did not explain why he did not continue to make payments
to the D.C. office after that date. Mr. Blackwell ultimately agreed that he made no
child support payments during his probation except for the $100 payment to the D.C.
Office of Child Support in October 2024.
B. Procedural Background
Before the hearing, the Board issued an order for ODC to serve Ms. Allen
with Mr. Blackwell’s subpoena for her appearance as a witness and the production
of an audio recording of a phone call. Ms. Allen, whom both parties included on
their witness lists, testified at the hearing in ODC’s case-in-chief and Mr. Blackwell
cross-examined her at length. During that cross-examination, ODC objected to
certain questions by Mr. Blackwell as outside the scope of direct examination and
the Hearing Committee overruled the objection, stating that Ms. Allen would be
appearing at the hearing only once and therefore Mr. Blackwell was permitted to
question her beyond the scope of ODC’s direct examination. Mr. Blackwell
accepted that arrangement, noting that if his cross-examination were to be limited,
he would seek to bring back Ms. Allen as a witness in his case-in-chief. 7
Mr. Blackwell nonetheless then subpoenaed Ms. Allen again to appear in his
case-in-chief and also subpoenaed the Assistant Disciplinary Counsel who was
litigating the case. The Hearing Committee granted ODC’s motions to quash both
subpoenas, stating that it had permitted Mr. Blackwell to cross-examine Ms. Allen
beyond the scope of the direct examination and to take direct evidence, and that the
Assistant Disciplinary Counsel had stipulated as to what he would testify to and
therefore his testimony was not necessary.
In its report and recommendation, the Hearing Committee first recommended
the denial of a motion to dismiss that Mr. Blackwell had filed, in which he argued
that he did not willingly violate his probation conditions because, among other
things, the VDCSE refused his attempts to obtain documentation regarding his
compliance and Ms. Allen “lied” and refused to cooperate with his efforts to make
child support payments. The Hearing Committee observed that even if Mr.
Blackwell’s assertions were true, the undisputed evidence demonstrated that he
failed to make any child support payments beyond the $100 payment.
The Hearing Committee then concluded that ODC proved by a preponderance
of the evidence that Mr. Blackwell violated the conditions of his probation requiring
him (1) to begin making monthly payments pursuant to a schedule and in amount
sufficient to fully satisfy his child support obligations by the end of the probationary 8
period and (2) to provide ODC with the payment schedule and statements showing
his compliance with the schedule. The Hearing Committee noted that, with respect
to the “simple question of whether [Mr.] Blackwell had made any child support
payments or any effort to pay off child support arrearages since signing the Probation
Order,” Mr. Blackwell “confirmed his near total failure to pay child support.” Mr.
Blackwell also provided “no evidence of his setting up of regular payments or
establishing a payment schedule that would allow him to pay off all arrearages by
the end of his probation.” The Hearing Committee acknowledged that the “exact
amount Mr. Blackwell owes in child support may be open to challenge,” but it
concluded that, “on Mr. Blackwell’s own testimony,” he “failed to make more than
a minimal effort to comply with” this court’s order to pay monthly child support and
arrearages.
The Hearing Committee recommended a sanction consisting of revocation of
Mr. Blackwell’s probation, suspension for four months (the period of suspension
that had been stayed), and a requirement that Mr. Blackwell’s reinstatement be
contingent on his having made all required child support payments to appropriate
child support agencies. The Hearing Committee accepted in mitigation Mr.
Blackwell’s testimony about his “deep concern as a parent for the well-being of his
child,” but it stated that “his failure to provide his child with court-ordered financial
support is undisputed” and his “failure to comply with the terms of his probation is 9
clear.”
The Board agreed with the Hearing Committee’s recommended disposition of
Mr. Blackwell’s motion to dismiss and found no error in the Hearing Committee’s
granting of ODC’s motions to quash the subpoenas directed at Ms. Allen and the
Assistant Disciplinary Counsel. It also agreed with the Hearing Committee that
ODC met its burden of proving by a preponderance of the evidence that Mr.
Blackwell violated the conditions of his probation. The Board noted that Mr.
Blackwell identified no evidence indicating that the Hearing Committee “erred in
concluding (1) that he has not complied with his child support obligations beyond a
$100 payment made in October 2024, despite the August 10, 2023 Court order and
his signature to the Board’s order of probation on September 10, 2023; (2) that he
has not established a monthly payment plan; and (3) that he has not applied for a
modification of the support orders.” In addition, the Board adopted the Hearing
Committee’s recommended sanction.
Mr. Blackwell filed exceptions to the Board report, bringing the matter before
this court. See D.C. Bar R. XI, § 9(e), (h); Bd. Pro. Resp. R. 18.4.
II. Analysis
ODC has the burden of establishing a violation of conditions of probation by 10
a preponderance of the evidence. Bd. Pro. Resp. R. 18.3(d). We “accept the findings
of fact made by the Board unless they are unsupported by substantial evidence of
record, and [we] adopt the recommended disposition of the Board unless to do so
would foster a tendency toward inconsistent dispositions for comparable conduct or
would otherwise be unwarranted.” D.C. Bar R. XI, § 9(h)(1). “Substantial evidence
means enough evidence for a reasonable mind to find sufficient to support the
conclusion reached.” In re Evans, 902 A.2d 56, 70 (D.C. 2006) (per curiam)
(internal quotation marks omitted). We review the Board’s legal conclusions de
novo. In re Samad, 51 A.3d 486, 495 (D.C. 2012) (per curiam).
We have reviewed the record and conclude that the findings of fact made by
the Hearing Committee and adopted by the Board are supported by substantial
evidence. As the Board determined, there is no basis from which to conclude that
the Hearing Committee erred in finding “(1) that [Mr. Blackwell] has not complied
with his child support obligations beyond a $100 payment made in October 2024,
despite the August 10, 2023 Court order and his signature to the Board’s order of
probation on September 10, 2023; (2) that he has not established a monthly payment
plan; and (3) that he has not applied for a modification of the support orders.” The
record supports the Hearing Committee’s determination that there has been a “near
total failure” by Mr. Blackwell “to pay child support.” 11
Mr. Blackwell asserts that the Board committed errors of law and that its
findings are not supported by substantial evidence, but he does not develop this
argument, see Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (“Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.”) (citation modified), and he provides no
specifics beyond one example. That example involves an alleged legal error in the
Hearing Committee’s use of the term “home state” in its finding that years ago Mr.
Blackwell made a child support payment in Maryland, where he lived at the time
(from this fact the Hearing Committee drew the inference that Mr. Blackwell knew
that he could make a child support payment in a state other than Virginia). The
Hearing Committee appears to have been using “home state” in its colloquial sense,
not as it is used in D.C. Code § 16-4601.01(8), and, regardless, any error in this
regard is of minimal significance.
Mr. Blackwell’s other exceptions and arguments are unpersuasive. First, he
contends that the Hearing Committee chair was biased against him. This argument
too is insufficiently developed, see Oji Fit World, LLC v. District of Columbia, 325
A.3d 392, 405 n.9 (D.C. 2024) (declining to address claim that trial court was biased
where appellants offered no support for the assertion), and, in any event, “in all but
the most extreme cases, rulings during courtroom proceedings do not constitute
evidence of judicial bias,” Plummer v. United States, 870 A.2d 539, 547 (D.C. 2005) 12
(citation modified).
Second, Mr. Blackwell takes issue with the Board’s determination that the
Hearing Committee did not err in granting ODC’s motions to quash the two
subpoenas. We agree with the Board that the Hearing Committee was within its
discretion in quashing both subpoenas. Cf. Russell v. United States, 65 A.3d 1172,
1174 (D.C. 2013) (grant of motion to quash subpoena reviewed for abuse of
discretion). The record shows that ODC examined Ms. Allen over eleven pages of
transcript while Mr. Blackwell’s examination of Ms. Allen consumed 121 pages,
with Mr. Blackwell going well beyond the scope of the direct examination and
eliciting direct evidence from Ms. Allen. The Hearing Committee also explained to
Mr. Blackwell at the time that it did not intend to make Ms. Allen appear twice and
therefore he could question her beyond the scope of ODC’s direct examination, and
Mr. Blackwell expressed his understanding that that arrangement was an alternative
to limiting the scope of his cross-examination and having Ms. Allen reappear for his
case-in-chief. We defer to the Hearing Committee’s determination that, in these
circumstances, bringing Ms. Allen back to testify further was not warranted. With
respect to the Assistant Disciplinary Counsel, we see no error in quashing a subpoena
directed at opposing counsel, especially where the Hearing Committee accepted a
stipulation as to what the Assistant Disciplinary Counsel would testify to. 13
Third, Mr. Blackwell challenges the Board’s agreement with the Hearing
Committee’s recommendation that his motion to dismiss the petition for revocation
be denied. Mr. Blackwell’s argument is essentially that the petition was subject to
dismissal because it was “undisputed” that the VDCSE would not accept child
support payments from him, make a payment plan, or provide any documentation
showing payments. We agree with the Hearing Committee and the Board that, even
if that is true, dismissal of the petition was not warranted. As we recognized in In
re Blackwell, Mr. Blackwell was permitted to “to seek modification of his child
support obligations and permit proof of payment either from VDCSE or through
other evidence, which could include payment to Maryland.” 299 A.3d at 573-74.
Mr. Blackwell presented no evidence of any child support payments to any state
agency other than a single payment of $100 to the D.C. Office of Child Support.
The petition for revocation of probation was accordingly not subject to dismissal.
Fourth, Mr. Blackwell contests the Board’s recommended sanction.
“Violation of any condition of probation shall make the attorney subject to
revocation of probation and the imposition of any other disciplinary sanction listed
in this subsection, but only to the extent stated in the order imposing probation.”
D.C. Bar R. XI, § 3(a)(7).
Where the Hearing Committee finds a violation of the terms or conditions of probation, it may recommend 14
(i) that no additional sanction be imposed, (ii) revocation of the probation and imposition of any sanction authorized by Section 3(a) of Rule XI, including but not limited to modification of the terms or conditions of the probation, but no greater discipline may be recommended than the underlying sanction imposed in the Court’s order of probation, or (iii) such other disposition as the Hearing Committee concludes is consistent with Section 3(a)(7) of Rule XI and will serve the purposes of justice and the disciplinary system. In determining the appropriate sanction, the Hearing Committee may consider the nature or seriousness of the violation, as well as any mitigating or aggravating factors.
Bd. Pro. Resp. R. 18.3(g).
The recommended sanction comes to us with a “strong presumption in favor
of its imposition,” In re Hallmark, 831 A.2d 366, 371 (D.C. 2003), and “[i]f the
Board’s recommended sanction falls within a wide range of acceptable outcomes, it
will be adopted and imposed,” In re McClure, 144 A.3d 570, 572 (D.C. 2016) (per
curiam) (internal quotation marks omitted). The ultimate responsibility of imposing
sanctions, however, “rests with this court in the first instance.” In re Godette, 919
A.2d 1157, 1164 (D.C. 2007) (internal quotation marks omitted). In imposing the
sanction, we must ensure that we do not “foster a tendency toward inconsistent
dispositions for comparable conduct” and that the sanction is not
“otherwise . . . unwarranted.” D.C. Bar R. XI, § 9(h)(1). “Where this court takes a
significantly different view of the seriousness of an attorney’s conduct, the court
thus has not hesitated to reach its own conclusion as to the appropriate sanction.” In 15
re Baber, 106 A.3d 1072, 1076 (D.C. 2015) (per curiam).
In imposing professional discipline, we aim “not only to maintain the integrity
of the profession and to protect the public and the courts, but also to deter other
attorneys from engaging in similar misconduct.” In re Martin, 67 A.3d 1032, 1053
(D.C. 2013) (internal quotation marks omitted). “[T]he purpose of imposing a
sanction is not to punish the attorney.” In re Avery, 189 A.3d 715, 720 (D.C. 2018)
(per curiam) (internal quotation marks omitted). When determining the appropriate
disciplinary sanction, we evaluate “(1) the seriousness of the conduct, (2) prejudice
to the client, (3) whether the conduct involved dishonesty, (4) violation of other
disciplinary rules, (5) the attorney’s disciplinary history, (6) whether the attorney
has acknowledged his or her wrongful conduct, and (7) mitigating circumstances”
as non-exhaustive factors. Martin, 67 A.3d at 1053.
We conclude that revocation of Mr. Blackwell’s probation, suspension for
four months (the period of suspension that had been stayed), and a requirement that
Mr. Blackwell’s reinstatement be contingent on his having made all required child
support payments to appropriate child support agencies is within the wide range of
acceptable outcomes in this case. As we observed in In re Blackwell, Mr.
Blackwell’s failure to comply with court orders was serious misconduct, 299 A.3d
at 573, and Mr. Blackwell again made virtually no effort to comply with this court’s 16
order. Mr. Blackwell, moreover, continues to deny his wrongful conduct and casts
aspersions on the Hearing Committee chair, ODC, and Ms. Allen. In light of these
circumstances, we agree that suspending Mr. Blackwell for the period of suspension
that we stayed is appropriate, as is a requirement that he make all required child
support payments in order to be reinstated.
III. Conclusion
For the foregoing reasons, Mr. Blackwell’s probation is revoked and he is
suspended from the practice of law in the District of Columbia for four months, with
his reinstatement contingent on his having made all required child support payments
to appropriate child support agencies. For purposes of reinstatement, Mr.
Blackwell’s suspension will not begin to run until he files an affidavit that fully
complies with the requirements of D.C. Bar R. XI, § 14(g).
So ordered.