Saturday, October 6, 2018

Hold The Phone (Charges)

The District of Columbia Board on Professional Responsibility agreed with a Hearing Committee and recommends disbarment of an attorney for ethical violations that include reckless misappropriation.

Before the board

On July 11 and 23, 2018, the Board received emails sent on behalf of Respondent asserting that Respondent had been detained in Nigeria. In Respondent’s July 23, 2018 filing, entitled “Emerfency [sic] Application/Notice to the Chair of the Committee,” Respondent asserted that from June 24 to July 6, the Nigerian Police, Abuja Command, prevented him from leaving Nigeria and that he was arrested on July 6 on a charge of “insulting the police.” He asserted that he was incarcerated from July 6 until July 16, and that these actions were taken against him “presumably on the instructions of the government of Nigeria with the sole purpose of preventing Respondent from attending the hearing in Washington.” (Emphasis added.) Respondent provided no documentary support for these assertions, and no explanation as to why he did not meet the July 2, 2018 deadline to notify the Board of his intent to participate in oral argument. We decline to allow him additional time based on an alleged detention that occurred after he missed the July 2 deadline.

Notably the hearing committee found he had charged an unreasonable fee in a contingent fee matter

We agree with Disciplinary Counsel that by charging a per-minute fee for telephone calls, Respondent imposed an unreasonable fee on his clients. According to the disbursement sheets for both Ms. Hammie-Bonner and Mr. Bonner, Respondent charged his clients $.15/minute for calls made to the client or others. The retainer agreement noted that the client would be responsible for “all costs and expenses” and “that it may be necessary for the firm to incur costs on [y]our behalf, which could include, but may not be limited to, investigative charges, court and discovery costs, expert witness fees and charges for securing records.” DX 2-A at 6. Respondent makes the incredible assertion, without any supporting evidence, that these telephone charges are costs his firm incurred. We are not aware of any telephone service available in the District of Columbia outside of the Central Detention Center that “incurs costs” for making or receiving local calls on a per minute basis. If Respondent had found such an expensive telephone service and had failed to change his service to a more economical market rate service, it would have been unreasonable for Respondent to transfer these costs to his clients. Telephone charges to Ms. Hammie-Bonner of $190.50 and to Mr. Bonner of $168 constitute unreasonable fees in violation of Rule 1.5(a). We also find the charge of a “PIP fee” to be unreasonable where no such charge is identified in the retainer agreements.

As to the defense of delay (the investigation of the complaint began in 2005). 

Respondent complains that he was denied due process because Disciplinary Counsel waited five years after the complaints were lodged before filing the Specification of Charges...

Delay in disciplinary investigations does not benefit the Respondent, the public, or our disciplinary system. But investigations that are conducted in a cursory fashion without sufficient time to consider all aspects of the charges are much worse for everyone. Respondent cites no prejudice he suffered due to Disciplinary Counsel’s delay other than “keeping his life in suspense.” R. Br. at 8. Moreover, the vast majority of the delay in this proceeding was at the request of Respondent who filed several motions for deferral and various requests for additional time to submit his filings. The Hearing Committee does not find that this delay was unreasonable or detrimental to Respondent sufficient to warrant a dismissal of the charges or a reduction in the sanction.

Respondent makes the point that if he had consented to disbarment in 2006, he would have been eligible for reinstatement in 2011. As it is, he has been suspended from the practice of law in the District of Columbia since 2008 and, if the Committee’s recommendation is adopted by the Court of Appeals, his  disbarment will not begin to run until 2018 at the earliest. Again, this delay is entirely of Respondent’s own making. He could have completed his term of reciprocal suspension by filing a certification under D.C. Bar R. XI, § 14(g). By failing to do this and repeatedly seeking deferrals and delays, Respondent cannot now complain of his lengthy suspension.

The case is In re  Ephraim C. Ugwuonye and can be accessed here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/10/a-district-of-columbia-hearing-committee-recommends-disbarment-of-an-attorney-for-ethical-violations-that-include-reckless-mi.html

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