Wednesday, November 7, 2018

Butt-Dial Explanation Rejected In Bar Reinstatement

In re Karen Cleaver-Bascombe is one of key sanction cases in the District of Columbia disciplinary system.

The respondent had submitted false vouchers for payment in court-appointed criminal cases and presented false evidence in the bar discipline hearing.

After much back-and-forth on sanction, the Court of Appeals rejected a proposed two-year suspension with fitness and ordered disbarment, expressing the view that the false evidence merited the ultimate sanction. 

Whenever the Court ratchets up a Board on Professional Responsibility sanction, it's an important precedent (my favorite here).

This is true because the Court (mistakenly, in my view, but pursuant to rule) defers to the board on sanction and thus grants the board great discretion.

The respondent (now petitioner) has tried twice to achieve reinstatement. The most recent attempt has been firmly rebuffed by an Ad Hoc Hearing Committee.

The committee noted 

During Petitioner’s period of disbarment, she repeatedly engaged in conduct bearing a striking resemblance to that for which she was disbarred – namely submitting false information on court forms for financial gain.

The misconduct was a false statement of financial affairs in a bankruptcy

Petitioner did not disclose on the SOFA that on August 22, 2012, approximately three weeks before filing the bankruptcy petition, Petitioner sold real estate located at 1806 Monroe Street, N.W., Washington, D.C. for $990,000.00 (Monroe Street transfer), and netted $127,666.26 from the sale. (DCX 9 at 2.) She deposited the proceeds into her personal checking account the next day, August 23, 2012, and by September 4, 2012, Petitioner withdrew at least $110,000 to pay expenses related to a construction project in Jamaica.

When that conduct was uncovered

the bankruptcy court dismissed the bankruptcy proceedings on December 6, 2012, with prejudice.

The committee rejected her inadvertance claim

We do not find credible Respondent’s explanation that she submitted an erroneous bankruptcy petition because she failed to read the SOFA form. The SOFA contains 25 questions on eight pages.

There was also job-related misconduct

During her period of disbarment, Petitioner was employed from October 2009 to May 2015, as a Civil Rights Investigator and Examiner at the United States Department of Agriculture (USDA). (DCX 2 at 4 (Petitioner’s Reinstatement Questionnaire, Question 4); (Tr. 69:6-9).) While at USDA, Petitioner violated USDA policy by using her government-issued business cell phone to make excessive personal international phone calls. Indeed, Petitioner admitted to making the phone calls (Tr. 69:21-70:4), and the evidence showed that USDA issued Petitioner a cell phone with instructions to use it only for work-related purposes, and limited personal calls.

Here, too, her explanation failed to persuade

Even at the hearing, Petitioner resisted taking responsibility for the unauthorized cellular bill. Initially, she testified that the calls may have been the result of a “purse dial” or “butt dial” but she “manned up and paid [the bill]” because the calls were made from her phone.

The burden of proof for restoring the license was not met

Given Petitioner’s equivocating testimony at the hearing, misleading statements at the October 12, 2012 bankruptcy creditors’ meeting about the actions that led to her disbarment, and the lack of knowledge by two of her witnesses of her specific misconduct, we find that, while earnestly making expressions of remorse, Petitioner has failed to present clear and convincing evidence that she recognizes the seriousness of her misconduct. Indeed, the evidence presented at the hearing shows that Petitioner does not recognize the seriousness of her misconduct. Petitioner cannot minimalize or deflect her wrongdoing when she believes it may best serve her.

The recommendation can be found here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/11/in-re-karen-cleaver-bascombe-is-one-of-key-sanction-cases-in-the-district-of-columbia-disciplinary-system-the-respondent-su.html

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