Winnie-The-Pooh And the Failed Reinstatement

A District of Columbia Hearing Committee has recommended that reinstatement be denied to an attorney who had consented to disbarment in 2009.

The case is In re James Q. Butler.

Petitioner consented to disbarment while facing more than one hundred complaints of misconduct involving allegations of multiple Rule violations – including the violation of the most serious rules prohibiting fraud, dishonesty, misappropriation, commingling funds, rampant neglect, and a pattern of aggressive marketing to, and taking money from, vulnerable incarcerated clients without providing meaningful services. Following his disbarment, the D.C. Bar Clients’ Security Fund paid out over $650,000 to clients harmed by Petitioner’s misconduct. To date, Petitioner has made restitution of $300...

The majority – but far from all – of the misconduct complaints arose in connection with Petitioner’s and his law firm’s representation of clients who were incarcerated as a result of criminal convictions and who wished to pursue potential post-conviction remedies. At some point during 2006 and 2007, Respondent and his firm had relationships with the Christian Civil Liberties Union (“CCLU”), Corrections and Prison Reform International, and Justice4All. DCX 6 at 2. Petitioner held himself out as associated with all of these entities and as the General Counsel for CCLU. All of these entities, with Petitioner’s knowledge and participation, distributed false and/or misleading advertising to incarcerated potential clients regarding the legal services Petitioner and/or the organization would provide. Id

One of the methods employed by Petitioner was to offer potential clients a “case evaluation” that would include an investigation of the client’s case for a fee between $500 and $700. Id. at 3. A client who paid the fee for the “case evaluation,” received a written document purporting to evaluate the client’s legal options. Id. However, the “case evaluation” was not client-specific and did not analyze the client’s procedural and/or substantive legal issues, or accurately or competently assess the client’s legal matter. Id. Instead, the “case evaluation” was an ambiguous, generalized, one-size-fits-all form that did not specifically analyze or describe the client’s legal options. Id. For example, seven of the ten case evaluations included in DCX 13 contained similar language in the “Actual Innocence” section which summarized the actual innocence standard set forth in a trio of U.S. Supreme Court cases: Murray v. Carrier, 477 U.S. 478 (1986), Kuhlmann v. Wilson, 477 U.S. 436 (1986), and Smith v. Murray, 477 U.S. 527 (1986). See DCX 13 at 2-3 (Ronnie Matthews), 8-9 (Maurice Williams), 15-16 (Nakia Davis), 20-21 (Kenneth White), 41-42 (Norris Bernard Ellis), 69-70 (Jody Williams), 77-78 (Roosevelt Broadus). Nine of the ten case evaluations contained the same language in the “Right to Effective Assistance of Counsel” section, which summarized the Sixth Amendment right to assistance of counsel case law, including: Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainright, 372 U.S. 335 (1963). These nine case evaluations also included a discussion of the Strickland v. Washington, 466 U.S. 668 (1984) line of cases setting forth the standard for determining ineffective assistance of counsel, but did not apply the standards to the facts of the client’s case. See DCX 13 at 4-6 (Ronnie Mathews), 10-12 (Maurice Williams), 16-18 (Nakia Davis), 22-24 (Kenneth White), 34-36 (Warren Ivory), 49-51 (Norris Bernard Ellis), 65-67 (Lewis Watson, Jr.), 70-72 (Jody Williams), 78-80 (Roosevelt Broadus). Finally, nine of the ten case evaluations included the exact same language in the “But For Prejudice” and “Components of Ineffectiveness Claims” sections. See DCX 13 at 6-7 (Ronnie Matthews), 12-13 (Maurice Williams), 18-19 (Nakia Davis), 24-25 (Kenneth White), 37-38 (Warren Ivory), 58-59 (Norris Bernard Ellis), 67 (Lewis Watson, Jr.), 72-73 (Jody Williams), 81 (Roosevelt Broadus). Only one of the ten case evaluations included in DCX 13 contained a different analysis regarding the client’s case, but the case-specific analysis is only two sentences. See DCX 13 at 30-31 (Steven Patrick Diffendal). Petitioner admitted that these “case evaluations” were “substandard,” used “generic,” “boilerplate,” or “template” language, and were provided to the clients in order to get them to sign a retainer with the firm. Tr. 280, 466-69; see also Tr. 495-96 (Flippen: “They simply changed out the client’s name and maybe some information about who might be touching that case.”).

An interesting tidbit

On January 30, 2009, Petitioner and Disciplinary Counsel filed a Petition for Negotiated Discipline agreeing to a one-year suspension with reinstatement conditioned on a showing of fitness, in response to allegations against Petitioner of dishonesty, neglect, lack of communication, and failure to return unspent funds that had been advanced to pay expenses in ten different matters. DCX 3. After an extraordinary outpouring of outrage from his former clients objecting to the leniency of the proposed disposition, the Hearing Committee rejected the disposition as not “justified” under D.C. Bar R. XI, § 12.1(c) and Board Rule 17.5(a)(i)-(iii). See Order, In re Butler, Bar Docket Nos. 2007-D311, et al. (H.C. Rpt. May 1, 2009).

The story starts in 2006

In November 2006, the first client complaint, from Mr. Wardrick, was docketed for investigation and sent to Petitioner for a response. DCX 23 (Wardrick). Three more complaints were docketed against Petitioner in 2007. Id. (Drummond, Bar Counsel, Durham).

On January 31, 2007, Petitioner agreed to a diversion program in the Wardrick case. DCX 24 at 4. This diversion was approved by a Board member on June 6, 2007.

...The Wardrick complaint and resolution afforded the Petitioner an opportunity to rein in his ambitious expansion of his practice and firm, and focus on the provision of quality legal services within his competence. This wake-up call was not heeded. 

When then-Bar Counsel sought a consent suspension

A number of Petitioner’s former clients submitted strikingly powerful letters to the Hearing Committee considering the Petition for Negotiated Discipline, describing the mental, emotional, and financial harm Petitioner caused to them and their families by his dishonesty and neglect. DCX 18 at 3 (“dashed out all rays of hope”), 6 ¶ 1 (“suffering”), 19 ¶ 4 (“dark hole”), 20 ¶ 2 (“ruined my life”), 28 ¶ 4 (“lost a great deal of sleep from the stress on my  family and me”), 39 ¶ 4 (“predatory lawyers”), 47 ¶ 5 (“abused his oath”), 49 ¶ 4 (“tarnished my feelings for the justice system”), 58 (“caused me stress, depression and regression”). 

The hearing committee then rejected the proposed consent.

Feelings have not softened

Considered quantitatively, Petitioner’s case is both extreme and severe. Qualitative consideration of the impact his misconduct had on his clients leads to the same conclusion when time limits ran out on clients’ limited access to post conviction relief from criminal convictions. In a coda to the outcry in response to the original negotiated discipline in 2009, more than two dozen former clients and family members of former clients submitted letters opposing readmission for Petitioner,

The hearing committee on reinstatement

Petitioner’s blithe expressions of ignorance, and his failure even to give thoughtful attention to the letters submitted in connection with this proceeding, are inconsistent with any meaningful recognition of the seriousness of his misconduct. Petitioner’s testimony was more consistent with a desire to put the past behind him than to demonstrate that he had learned from his experiences: “With no disrespect to those clients that were harmed, I have already acquiesce[d] to this misconduct and I don’t dispute that any of the misconduct named in the negotiated discipline occurred.”

And this

the record betrays a pervasive false insinuation that this was all the fault of the mysterious Anthony Andelino, who was affiliated with Petitioner for a time to build the “postconviction relief practice” and is purported to have impersonated him when dealing with clients. E.g., Tr. 271 (“These cases came from Andelino . . . .”). Petitioner testified that telling the story of his own misconduct without mentioning Mr. Andelino would be like “telling a story about Winnie-the-Pooh without ever mentioning Winnie-the-Pooh’s name.” Tr. 276. Hardly. Petitioner is the main character in this story and his persistent minimization of his own role is a signal of Petitioner’s failure to come to terms with why he was disbarred. Petitioner conceded that Mr. Andelino, whose admission to any Bar has not been demonstrated, was gone from the firm as of mid-2007. Tr. 383. Many of the complaints post-date Mr. Andelino’s departure, and recount inperson meetings with Petitioner.

The weak restitution effort did not help. (Mike Frisch)