Matter of Robertson

612 A.2d 1236, 1992 WL 160357, 1992 D.C. App. LEXIS 180

• Court: District of Columbia Court of Appeals
• Decided: July 7, 1992
• Docket: 91-SP-730
• Status: Published

Opinions

FERREN, Associate Judge:

This matter is before the court on the recommendation of the Board on Professional Responsibility that we suspend respondent from the practice of law in the District of Columbia for 90 days and order him to pay a former client $7,191.61 in restitution. Although neither respondent nor Bar Counsel opposed the Board’s recommendation, the case was assigned to the regular calendar for oral argument. Neither party filed a brief in this court. Upon reading the Board’s Report and Recommendation, however, we asked the parties to focus their argument on the issue of restitution. We now conclude that the Board’s recommendation that we order respondent to pay $7,191.61 to a former client is premised on an erroneous interpretation of “restitution” under D.C. Bar Rule XI, § 3(b). We therefore do not adopt the recommendation, for it would require us to impose an impermissible sanction under our rules.

We agree, however, with the Board’s uncontested findings that respondent violated Disciplinary Rules 6-101(A)(3) (neglect of a legal matter), 7-101(A)(l) (intentionally failing to seek the lawful objectives of a client), 7-101(A)(2) (intentionally failing to carry out a contract of employment for professional services), and 7-101(A)(3) (intentionally prejudicing or damaging a client during the course of the professional relationship) — as explained in relevant portions of the Board’s report attached as an appendix to this opinion. Because the Board’s recommendation of a 90-day suspension was coupled with a proposal that we order restitution, we cannot know what sanction the Board would have recommended if it had known its proposed restitution fell outside the limitations of Rule XI, § 3(b). Rather than remand for reconsideration of a proposed sanction, however, we believe it appropriate for this division of the court to impose the sanction, since imposition of sanctions is our responsibility in the first instance and we are in a position, on this record, to do so. Accordingly, in light of the Board’s findings and the circumstances of this case, we order respondent’s suspension from the practice of law for 120 days.

I.

According to the Board’s report:

Respondent was retained by Mr. Russell Miller in March or April of 1984 to prepare and file Maryland and federal income tax returns for Mr. Miller for 1983. Mr. Miller was acquainted with Respondent through seminars they had attended together and through previous legal work undertaken by Respondent on behalf of Mr. Miller.

Mr. Miller provided Respondent with all of his relevant tax records and documents and did not keep copies. When Respondent did not complete work on Mr. Miller’s 1983 returns in time to meet the April 1984 filing deadline, an extension was requested by Respondent and Mr. Miller. The extension expired without Mr. Miller’s tax returns having been filed and without Respondent having communicated with Mr. Miller as to the status of the returns. Thereafter, Mr. Miller continued to file for extensions, not only for 1983, but also for 1984,1985, 1986, 1987 and 1988. Mr. Miller believed he could not file complete and accurate tax returns for years subsequent to 1983 until his returns for that year were completed and his records returned to him.

From the fall of 1984 until Mr. Miller complained to Bar Counsel in 1989, Mr. Miller repeatedly communicated to Respondent his desire to have his 1983 tax returns completed. He forwarded all communications from the IRS concerning his tax returns to Respondent and was repeatedly assured by Respondent that the forms would be completed shortly. In 1987 Mr. Miller hired another attorney, Charles M. Shryock, III, to assist him in his efforts to have Respondent complete the tax forms for 1983 or return Mr. Miller’s records. The tax forms were never prepared or filed by Respondent. Mr. Miller’s tax returns for the years 1983-1985 were prepared and filed for him in December 1989 by an accountant engaged by Mr. Shryock, approximately one month after Respondent furnished Mr. Miller’s records to Mr. Shryock.

In the five years Respondent retained Mr. Miller’s records, Respondent never told Mr. Miller or Mr. Shryock that he required additional information in order to permit him to complete and file the 1983 returns. Instead, Respondent repeatedly told Mr. Miller and later Mr. Shryock that the work would be completed in a matter of weeks or days. When Respondent finally turned Mr. Miller’s records over to Mr. Shryock, the accountant engaged by Mr. Shryock requested only one additional item of information, which Mr. Miller promptly provided.

Both Maryland and the IRS denied Mr. Miller’s claims for refunds for 1983, 1984 and 1985 on the ground that they were filed more than three years after the returns were due to be filed. Mr. Shryock testified that the total amount of the denied claims was between $16,000 and $25,000. The record does not contain further support for that estimate. Bar Counsel’s exhibits show that Mr. Miller claimed refunds and overpayment credits of $5,376.73 and $1,814.88 on his 1983 Maryland and federal returns, respectively, and that those claims were denied as untimely. [Citations to record omitted.]

The Hearing Committee recommended that the Board reprimand respondent and order him to make restitution. Respondent repeatedly had stated his intention to compensate Mr. Miller for losses respondent had caused. Respondent did not oppose a restitution sanction, nor did he suggest a specific sum for the restitution order.

II.

The Hearing Committee recommended a reprimand rather than a more severe sanction because of respondent’s promise to “make reparations for any financial damage Mr. Miller might sustain by way of lost [tax] refunds.” Because there was some ambiguity concerning the exact amount of Mr. Miller’s loss, the Hearing Committee recommended that respondent submit a specific, written “restitution plan.” Respondent apparently promised, but failed, to do so. The Board, therefore, properly considered respondent’s failure to carry-out his promise when it recommended a sanction. See In re Solomon, 599 A.2d 799, 800-01 (D.C.1991). After reviewing previous decisions of this court imposing sanctions for similar violations, and after taking into account the fact that respondent had not been subject to prior discipline and that his misconduct related to a single client, the Board recommended a 90-day suspension. The Board also recommended “restitution” to enforce respondent’s promise to pay Mr. Miller for his financial loss.

We agree with the Board that sanctions in similar cases have ranged from suspensions of 60 days to six months. See, e.g., In re Lawrence, 526 A.2d 931, 933 (D.C.1986) (intentional failure to seek client’s lawful objectives and intentional failure to carry out employment contract warrant 60-day suspension; listing similar cases in which court ordered suspensions of 90-days or six months). We also agree that there are certain aggravating circumstances we should consider in this case: the duration of respondent’s misconduct, the economic damage the Hearing Committee found he knowingly caused his client, and respondent’s failure to follow through on his promise to reimburse his client for financial losses attributable to respondent’s ethical defaults. Because, however, we cannot adopt the other element of the Board’s recommended sanction, restitution, for reasons stated in Part III below, we conclude that the most appropriate sanction, in light of previous cases, would be a 120-day suspension. See, e.g., In re Jamison, 462 A.2d 440, 442 (D.C.1983) (failure to carry out contracts of employment and neglect of legal matter warrant three-month suspension); In re Knox, 441 A.2d 265, 268 (D.C.1982) (neglect of legal matter warrants three-month suspension); In re Russell, 424 A.2d 1087, 1088 (D.C.1980) (serious neglect of client’s case coupled with failure to cooperate with Bar Counsel warrants six-month suspension).

III.

D.C.Bar R. XI, § 3(b) empowers this court or the Board on Professional Responsibility to “require an attorney to make restitution either to persons financially injured by the attorney’s conduct or to the Clients’ Security Trust Fund (see Rule XII), or both, as a condition of probation or of reinstatement.” In this case, in addition to recommending a suspension, the Board recommends requiring respondent to make “restitution” to Mr. Miller in the amount of $7,191.61, the total amount of the refunds and overpayment credits Mr. Miller claimed on his 1983 Maryland and federal income tax returns. Presumably, Mr. Miller would have received this amount from the state and federal governments but for the running of applicable limitation periods attributable to respondent’s neglect of his professional obligations.

In recommending this amount of restitution, the Board appears to adopt a definition of “restitution” that both the Hearing Committee and Bar Counsel have proposed: restitution should aim at making the client whole. Because we find no support for this expanded concept of restitution in this court’s previous disciplinary decisions, and because the Board’s definition blurs the distinction between restitution and consequential damages, which are more appropriately determined in a civil adjudication, we cannot adopt the Board’s recommendation.

In defining restitution the way it did, the Board relied primarily on dicta in a concurring opinion that no division of this court has adopted. In In re O’Donnell, 517 A.2d 1069 (D.C.1986), the court adopted the Board’s recommendation that we suspend the respondent for a year and require him to make restitution of the $1,000 fee his clients had paid him to form a corporation and to file an application for a liquor license. Judge TERRY, in his concurring opinion, stated:

Were it not for the existence of [a $400,-000 civil judgment in favor of the respondent’s clients against the respondent], I would vote to require far greater restitution to [the clients] than a mere $1,000, which represents only a refund of the retainer they paid to respondent and does not even begin to make them whole.

Id. at 1069. Seen in context, we believe Judge TERRY was expressing understandable dissatisfaction with the respondent’s failure to satisfy an earlier civil judgment for damages his former clients had won against him for his professional negligence. Judge TERRY went on to remark that before reinstating the respondent, the court should consider whether the respondent had satisfied the civil judgment. See id. at 1070.

This court has never precisely defined, in a published opinion, the meaning or scope of “restitution” under Rule XI, § 3(b). However, in an unpublished decision, In re Anderson, No. 86-657 (D.C. July 28, 1986), this court adopted a Board report and recommendation that specifically addressed the meaning of restitution under our disciplinary rules. In Anderson, Bar Counsel requested that the respondent be ordered to pay $29,627.59, representing the client’s damages. The Hearing Committee disagreed, recommending that the Board order restitution of $2,000, the amount of the fee the client had paid to the respondent. The Board agreed with the Hearing Committee. In its report to this court in Anderson, the Board noted that the “Rules of the Court of Appeals clearly contemplate that the Court can determine and order restitution to an aggrieved client of an amount that he or she has paid to culpable counsel.” Then, after citing and quoting from Lee v. Foote, 481 A.2d 484, 485-86 (D.C.1984) (“The purpose of restitution is to require the wrongdoer to restore what he has received....”), and other contract cases, the Board declared: “the object of restitution is simply to restore to an injured person what another has wrongfully obtained from him.”

We agree with the Board’s analysis of disciplinary restitution in Anderson. We have adopted, at least implicitly, this much narrower, more traditional meaning of restitution than the broad interpretation both Bar Counsel and the Board suggest based on Judge TERRY’s concurring words in O’Donnell. Our previous orders demonstrate that this court and the Board have adhered to the following definition of restitution: a payment by the respondent attorney reimbursing a former client for the money, interest, or thing of value that the client has paid or entrusted to the lawyer in the course of the representation.¹

For example, in O’Donnell, 517 A.2d at 1069, this court, on recommendation of the Board, limited the required restitution to the $1,000 retainer fee the clients had paid the attorney. Likewise, in In re Roundtree, 467 A.2d 143, 148 (D.C.1988), we adopted the Board’s recommendation of $410 in restitution, representing what the client had paid to the lawyer, characterized as her “out of pocket” expense. See id. In In re Landesberg, 518 A.2d 96 (D.C. 1986), we ordered client restitution in the amount of $1,200. The Board arrived at that sum by adding the $900 fee the client had paid to the respondent to $300 the client had paid in interest as a result of borrowing money to pay the fee. See id. at 103 (Board report attached as appendix). The $1,200, therefore, represented the client’s out of pocket expense, including what the client had to pay in order to give the respondent his fee. In In re Solomon, 599 A.2d 799 (D.C.1991), the respondent had failed to follow through on a promise he had made to Bar Counsel that he would reimburse the fee and expense money his client had paid him. We concluded that it was appropriate to enforce this particular promise and ordered restitution of these items. Id. at 800-01. See also In re Santana, 583 A.2d 1011, 1012 (D.C.1990) (ordering respondent to pay restitution to former client in amount client had paid respondent); In re Taylor, 511 A.2d 386, 386 (D.C.1986) (same); In re Washington, 541 A.2d 1276, 1277 (D.C.1988) (ordering restitution of fee and or expense money advanced by each of respondent’s wronged clients).²

The definition of disciplinary restitution we explicitly adopt today comports with the common law definition under the Restatement of Contracts (Second) § 370 (1981): a restitution interest is an interest “in having restored to [one party] any benefit that [he or she] has conferred on [another] party.” Id. at comment a (emphasis added). As the Introductory .Note to restitution in the Restatement recognizes, the objective of restitution is

not the protection of a party’s expectation or reliance interests but the prevention of unjust enrichment.... A party who has received a benefit at the expense of [another] ... is required to account for it, either by returning it in kind or by paying a sum of money.

Id. at p. 199. Restitution is thus distinct from reliance or expectation damages under contract doctrine or from reasonably foreseeable damages under tort doctrine. In such civil actions, the goal is to compensate an injured party for damages caused by another’s breach of contract or duty, i.e., to make that party whole.

As we have stated before, a disciplinary proceeding is an inappropriate forum for determining issues relevant to a client’s damages resulting from attorney malpractice. See In re Haupt, 444 A.2d 317, 317 (D.C.1982); In re Anderson, supra (Board report attached as appendix) (“Bar disciplinary system is not well suited to assessing damages for tortious conduct or breach of contract”). The disciplinary process is not designed to handle questions of causation, foreseeability, burdens of proof, mitigation, contributory negligence, and other issues which have to be resolved in a civil suit for damages and inevitably would come into play if we were to expand the definition of restitution, for disciplinary purposes, beyond its traditional scope and meaning.³ We could, of course, expand, for disciplinary purposes, the traditional meaning of “restitution” to include easily ascertainable damages, on the ground that proof problems would be minimal. But such an approach would be an arbitrary loosening of the plain meaning of the term — a result not clearly intended by the drafters of the rule — and would likely result in quibbles preventing an easily admin-istrable sanction.

In summary, we conclude that the Board’s recommendation that respondent pay $7,191.61 to Mr. Miller was premised on an erroneous interpretation of “restitution” under Rule XI, Sec. 3(b). Therefore, because the Board’s proposed recommendation would be inconsistent with our previous disciplinary orders and would be impermissible given our interpretation of “restitution” under Rule XI, Sec. 3(b), we decline to adopt the Board’s recommended sanction. See D.C.Bar R. XI, § 9(g).⁴

IV.

Our dissenting colleague would adopt the Board’s recommendation that we order $7,191.61 in “restitution,” not because that recommendation conforms to the requirements of D.C.Bar R. XI, § 3(b), but because respondent “initially proposed and later effectively agreed to the relief recommended by the Board.” Post at 15. He chides the majority for interpreting and applying Rule XI, § 3(b) without briefing from the parties.

Contrary to the dissent’s characterization of this matter, we did not raise the issue of restitution on our “own initiative.” That issue was before us as a matter of law because only this court, not the Board, may order suspension with restitution as a condition of reinstatement. See D.C.Bar R. XI, § 3. In cases involving suspension, id. at § 3(a)(2), in contrast with a reprimand, id. at § 3(a)(4), the Board only makes a recommendation to this court. Although we defer to the Board’s findings of fact and give great weight to the Board’s recommendation in cases such as this, this court must interpret and apply our disciplinary rules and order discipline in the first instance. This is not a case of appellate review of a final agency order based on an agency’s interpretation of its governing statute. Furthermore, we cannot adopt a recommendation that we order “restitution” if it goes beyond the scope of what our rules allow simply because the respondent attorney has not effectively contested the recommendation.

We have no rule or policy that allows the court to impose negotiated discipline without regard to the meaning of our disciplinary rules. Only our rule on disbarment by consent, D.C.Bar R. XI, § 12, allows a negotiated sanction, and under that provision the meaning and requirements of the rule are clear. Moreover, Rule XI, § 12 requires that issue be joined; the rule requires an affidavit from the attorney acknowledging that the material facts alleged as misconduct are true. This requirement assures not only that a respondent’s admission is on record but also that the sanction fits the facts — that the sanction is not too great for the attorney’s misconduct. In short, we do not impose discipline without regard to what the rule relied on means and whether it applies to the facts presented.⁵

The cases on which the dissent relies, far from applying “a fortiori ” to this case, are inapposite. Those cases say that a respondent attorney who claims lack of notice of the charges or other procedural irregularities, without having raised them before the Hearing Committee or the Board, will be held to have waived such claims, consistent with due process. See In re Alexander, 496 A.2d 244, 254 (1985) (per curiam); In re Rosen, 470 A.2d 292, 299 (D.C.1983); In re James, 452 A.2d 163, 168-69 (D.C.1982), cert. denied, 460 U.S. 1038, 103 S.Ct. 1429, 75 L.Ed.2d 789 (1983) (per curiam). There is not a hint in any of these cases that we may impose a sanction against a defaulting attorney without being sure that the sanction is permitted under the rules. We obviously have to be sure we have authority to impose a particular sanction before we do so; otherwise, we might be party to a lawless exercise. Ultimately this court, not the Board, decides the meaning of the rules this court has adopted. We therefore cannot simply rub-berstamp an order imposing attorney discipline if it is premised on an erroneous interpretation of our rules, even if the attorney has not contested the recommended sanction.

The question whether we should have insisted on briefing is a closer one, and we agree that, ordinarily, we would not proceed without it. However, as the cases we cite make clear, this court has had a consistent understanding that “restitution” under D.C.Bar R. XI, § 3(b) has a traditional, limited meaning which this court acknowledged by adopting the Board’s report in 1986 in Anderson, an unpublished opinion. Furthermore, in the present case the Board adopted and applied a definition of “restitution” advocated by Bar Counsel and the Hearing Committee. The Board’s position is entirely clear, and its report cites many if not most of our cases in this area, forming the substance of a brief. Finally, oral argument was very helpful in focusing the issue and testing our concerns, and neither party asked for permission to file a post-argument brief on the issue we specifically directed them to address. All things considered, therefore, we conclude that the issue is straightforward, has a clear answer, and should be resolved without further delay.

In resolving the case as we do, we are concerned for the client — Mr. Miller certainly deserves better — although Mr. Miller must share some of the blame for his losses. He waited until 1987 to hire another attorney to prepare his 1983-1985 tax returns, which were not filed until December 1989, the year when Mr. Miller also complained to Bar Counsel. In any event, we feel no sympathy for the respondent.⁶ But we have to act lawfully. There may be an effective way to mix lawyer discipline with provision of more complete relief to the client than restitution, but presently a damages remedy is not available under our rules.

Accordingly, it is

ORDERED, that Lawrence Robertson be suspended from the practice of law in the District of Columbia for 120 days, effective thirty days from the date of this opinion and order.

1 . Rule XI, § 3(b) also allows the Board or this court to order a respondent to pay restitution to the Clients’ Security Trust Fund as an alternative, or in addition, to restitution to a former client.

2 . We are sometimes called upon to review the trial court’s order of criminal "restitution or reparation" under D.C.Code § 16-711 (1989). See Sloan v. United States, 527 A.2d 1277, 1288-90 (D.C.1986) (per curiam); Jones v. United States, 560 A.2d 513 (1989); Hardy v. United States, 578 A.2d 178 (1990). Section 16-711 provides sentencing options and its purpose is punishment. See Sloan, 527 A.2d at 1289. In general, the term "reparation" means a criminal penalty paid to victims of the criminal act based on damages and losses suffered by the victims. See Black's Law Dictionary 1167 (5th ed. 1979). D.C.Code § 16-711 neither defines nor distinguishes between "restitution" and “reparation.” It does, however, order the trial court to take into consideration various factors including "the actual damage to each victim.” Id., § 16-711(b). Because of the differences between the criminal law and bar disciplinary rules, we do not find § 16-71 l’s inclusion of damages within the scope of "restitution or reparation" to be of use in our analysis. We do note, however, that just as the criminal restitution statute “was not designed to serve as an additional civil remedy for victims of crime, but as a tool for use in sentencing,” Sloan, 527 A.2d at 1289, the disciplinary rule permitting restitution is designed not to authorize complete civil relief but to assure that an attorney who violates the disciplinary rules is.not unjustly enriched by retaining funds supplied by the client.

3 . The difficulty of assessing damages in a disciplinary proceeding is exemplified by the Board's action in this case in foregoing Bar Counsel’s proposed restitution of between $16,000 and $25,000, representing the cumulative amount of anticipated refunds the client supposedly lost from not filing tax returns in 1983, '84 and '85. Because the Board could not ascertain the amount of the client’s losses caused by respondent’s neglect regarding the 1984 and 1985 income tax returns, the Board limited its recommendation for restitution to the $7,191.61 the client almost assuredly would have received in refunds if he had filed his 1983 tax returns on time. The Board's difficulty in drawing the line between clear and less clear losses shows why any measure of restitution that would extend to consequential damages would cause proof problems better handled in traditional judicial forums with the right to a jury in appropriate cases.

4 . There is no evidence in the record that respondent received (or failed to return) any fee or expense funds from Mr. Miller. We also note that the Board did not recommend conditioning respondent’s reinstatement on anything other than restitution.

5 . Respondent’s failure to contest the Board’s recommended restitution order is not the functional equivalent of a “consent decree." Dissent, post at 1247, 1248 n. 11. Respondent has not negotiated a judgment with Bar Counsel and the Board based on a compromise intended to resolve and forestall further litigation.

6 . We believe that the dissent’s "non-opinion” that Mr. Miller will be unable to bring a civil suit is speculative. Furthermore, if respondent indeed did attempt to extract disciplinary leniency through his promise to compensate Mr. Miller, as the dissent asserts, then it backfired: respondent’s failure to make good on his promise was a factor in both the Board's recommendation of a 90 day suspension and our order imposing a 120 day suspension.