In re Gilbert Baber

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-BG-1491

IN RE GILBERT BABER, RESPONDENT.

A Suspended Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 428285)

On Report and Recommendation of the
Board on Professional Responsibility
(BDN-518-09)

(Submitted November 13, 2014 Decided January 15, 2015)

Wallace E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar
Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief for the
Office of Bar Counsel.

Before THOMPSON and MCLEESE, Associate Judges, and NEWMAN, Senior
Judge.

PER CURIAM: The Board on Professional Responsibility has concluded that

respondent Gilbert Baber violated numerous Rules of Professional Conduct during

his representation of a client in a probate matter. The Board recommends that Mr.

Baber be suspended from the practice of law for a period of three years and be

required to prove fitness and to pay restitution as conditions of reinstatement. The
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Office of Bar Counsel contends that Mr. Baber‟s conduct constituted flagrant

dishonesty requiring disbarment. We conclude that Mr. Baber should be disbarred.

I.

The Board‟s report and recommendation rests on the following findings,

which are undisputed in this court.

In April 2007, Darlene Gripper retained Mr. Baber to represent her in the

probate of her mother‟s estate. Ms. Gripper and Mr. Baber signed a retainer letter

providing that Mr. Baber was to charge Ms. Gripper $125 per hour, plus expenses.

On June 14, 2007, Mr. Baber filed a petition for unsupervised probate, naming Ms.

Gripper as the personal representative of her mother‟s estate. On June 19, 2007,

the probate court appointed Ms. Gripper as the personal representative of her

mother‟s estate.

As personal representative, Ms. Gripper was required to give notice of the

opening of the estate to her two brothers, as “interested persons,” within twenty

days of her appointment, i.e., by July 9, 2007. Ms. Gripper‟s brothers did not

receive notice until July 30, 2007, approximately three weeks after the required
 3

date. Ms. Gripper was also required to publish notice of the opening of the estate

within three months of her appointment and to verify to the court that she had done

so. On September 10, 2007, the probate court sent a notice to Mr. Baber and Ms.

Gripper, reminding them that they needed to file a verification with the court by

September 24, 2007. Despite receiving the reminder, Mr. Baber did not send the

verification form to Ms. Gripper to sign until September 27, 2007. Ms. Gripper

sent the signed forms back to Mr. Baber the next day, but Mr. Baber did not file

them until October 2, 2007.

Additionally, as personal representative, Ms. Gripper was required to

complete an inventory of the estate within three months of her June 19, 2007,

appointment. Mr. Baber did not provide Ms. Gripper with the necessary forms

until October 9, 2007, well after the deadline. He also erroneously advised Ms.

Gripper on how to properly value the estate and refused to correct the valuation

despite Ms. Gripper‟s request that he do so.

The probate court set a hearing for October 30, 2007, to determine whether it

should remove Ms. Gripper as personal representative. At the hearing, Mr. Baber

told the court that Ms. Gripper had missed deadlines because the estate had limited

funds, which was not true. Mr. Baber billed Ms. Gripper for the time he spent
 4

preparing for and participating in the hearing, even though his neglect had led the

probate court to schedule the hearing in the first place.

In July 2008, Mr. Baber learned that the estate‟s share of proceeds from the

anticipated sale of property in Alabama was estimated at around $196,000. Mr.

Baber subsequently wrote a letter to Ms. Gripper memorializing an oral

modification of the terms of the retainer agreement, to provide that Mr. Baber

would receive five percent of the estate‟s interest in the property if the property

was sold. His explanation for the modification was that it was “too burdensome”

for him to document the time he spent on work relating to the property. Despite

this explanation, the modified agreement stated that, if the property was not sold,

Mr. Baber would be paid hourly for his time. Although the property was not sold,

Mr. Baber nevertheless demanded one-third of five percent of the estimated value

of the property. Ms. Gripper refused to pay and requested an accounting of Mr.

Baber‟s time on the matter so that she could pay him the agreed-upon hourly fees.

Rather than comply with Ms. Gripper‟s request, Mr. Baber sent a notice to

Ms. Gripper informing her that he was withdrawing from the representation. In the

notice, Mr. Baber stated that he was withdrawing because, among other things, (1)

Ms. Gripper had failed to pay her monthly bills in a timely manner; (2) Ms.
 5

Gripper had failed to cooperate with Mr. Baber and to furnish information and

documentation in a timely manner; and (3) Ms. Gripper had refused to comply

with Mr. Baber‟s demand for one-third of the five-percent fee for the unsold

property. Mr. Baber also accused Ms. Gripper of attempting to “perpetrate a fraud

on the Court,” and he demanded that she pay him $10,360.48, representing one-

third of the five-percent fee, the balance owed for work relating to the unsold

property, and the balance owed for work in April. He threatened to sue Ms.

Gripper for the total amount if she failed to pay $3,265.99 by April 15, 2009. In

response, Ms. Gripper stated that she disagreed with Mr. Baber‟s assertions and

requested a full accounting of services and all documents that Mr. Baber had

received or sent to third parties in connection with the representation.

Mr. Baber subsequently filed a motion in the probate court, seeking to

withdraw from the representation. The motion contained false accusations and

misrepresentations similar to those he made in his earlier letter to Ms. Gripper.

When Ms. Gripper renewed her request for her case file, Mr. Baber refused to turn

it over or account for his time, stating that he did not document every hour he spent

working on the unsold property. Mr. Baber thereafter sent Ms. Gripper a letter

estimating that he spent thirty-three hours working on the property, but Ms.

Gripper refused to pay Mr. Baber because he had only provided an estimate. The
 6

probate court ultimately granted Mr. Baber‟s motion to withdraw, without

endorsing any of the allegations in the motion.

Mr. Baber‟s actions caused prejudice to Ms. Gripper. One of Ms. Gripper‟s

brothers charged her with malfeasance in the administration of the estate, expressly

relying on the allegations in Mr. Baber‟s motion to withdraw. Furthermore,

because Mr. Baber withdrew, Ms. Gripper had to restart the probate process with a

new attorney and post a $61,000 probate bond.

Mr. Baber also sued Ms. Gripper in Superior Court, accusing her of

fraudulently using his legal services to “conceal and misrepresent [her mother‟s]

assets” and to deny her brothers their lawful share of the estate‟s assets. After Ms.

Gripper filed a pro se answer to the lawsuit, Mr. Baber filed a motion to dismiss

the answer and a motion for judgment against Ms. Gripper, claiming that Ms.

Gripper had fraudulently represented herself as a lawyer. In fact, Ms. Gripper had

not represented herself as a lawyer. The court denied Mr. Baber‟s motions.

Ultimately, Mr. Baber filed a consent motion to dismiss his lawsuit with prejudice,

stating that “[t]he filing of this lawsuit against [Ms. Gripper] should not be

construed as indicating anything negative about her character or honesty.” The

trial court dismissed the lawsuit with prejudice. The court subsequently amended
 7

the dismissal order, to add language stating that the filing of the lawsuit “should

not be construed as indicating anything negative about [Ms. Gripper‟s] character or

honesty.”

Ms. Gripper filed a disciplinary complaint against Mr. Baber. In response,

Mr. Baber stated that the complaint he had filed in Superior Court accurately stated

his defense to Ms. Gripper‟s allegations.

After an evidentiary hearing, a Hearing Committee of the Board on

Professional Responsibility concluded that Mr. Baber violated numerous Rules of

Professional Conduct. Specifically, the Hearing Committee found that Mr. Baber

had exhibited a lack of knowledge about probate law and practice and failed to

competently represent Ms. Gripper, in violation of Rules 1.1 (a) and (b); failed to

act zealously and diligently and misused information he had obtained in

representing Ms. Gripper to formulate baseless attacks against her, in violation of

Rules 1.3 (a) and (c); failed to keep Ms. Gripper reasonably informed, in violation

of Rules 1.4 (a) and (b); charged unreasonable fees, in violation of Rule 1.5 (a);

betrayed client confidences to Ms. Gripper‟s detriment, in violation of Rules 1.6

(a)(1), (2), and (3); failed to timely return Ms. Gripper‟s file after the

representation ended, in violation of Rule 1.16 (d); knowingly made false
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statements to the court, in violation of Rules 3.3 (a) and 8.4 (c); and engaged in

conduct that seriously interfered with the administration of justice, in violation of

Rule 8.4 (d). The Hearing Committee recommended that Mr. Baber be disbarred,

because his conduct amounted to “flagrant dishonesty.” The Hearing Committee

also recommended that Mr. Baber be required to pay restitution of $8,093.75 plus

interest.

The Board agreed with the Hearing Committee‟s findings of fact and

conclusions that Mr. Baber committed the foregoing violations of the Rules of

Professional Conduct. The Board concluded, however, that Mr. Baber‟s conduct

did not constitute flagrant dishonesty. In reaching that conclusion, the Board

considered that Mr. Baber had no prior disciplinary record, that his

misrepresentations were limited to Ms. Gripper‟s case, and that he withdrew his

civil complaint and did not resist Ms. Gripper‟s request that the Superior Court

clarify its dismissal order to protect her reputation. The Board recommended that

Mr. Baber be suspended from the practice of law in the District of Columbia for

three years and that Mr. Baber be required to demonstrate his fitness to practice

and to make restitution in the amount of $8,093.75, plus interest, before being

permitted to resume the practice of law.
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II.

Mr. Baber has not challenged before this court the report and

recommendation of the Board. Moreover, the record provides ample support for

the Board‟s findings of fact and conclusions that Mr. Baber violated numerous

Rules of Professional Conduct. We therefore accept those findings and

conclusions. See generally, e.g., In re Vohra, 68 A.3d 766, 769 (D.C. 2013)

(accepting Board‟s uncontested findings of facts and conclusions that attorney

violated Rules of Professional Conduct).

Bar Counsel does challenge the Board‟s recommended sanction, arguing that

Mr. Baber instead should be disbarred. On the question of what sanction to

impose, “[o]ur Rules provide that this Court „shall 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.‟” Vohra, 68 A.3d at 771 (quoting D.C. Bar R. XI, § 9 (h)(1)). Thus,

“[a] sanction recommendation from the Board comes to us with a strong

presumption in favor of its imposition.” Id. (internal quotation marks omitted). In

general, “if the Board‟s recommended sanction falls within a wide range of

acceptable outcomes, it will be adopted and imposed.” Id. (internal quotation
 10

marks omitted). “Ultimately, however, the system of attorney discipline, including

the imposition of sanctions, is the responsibility and duty of this court.” In re

Kanu, 5 A.3d 1, 14 (D.C. 2010) (internal quotation marks omitted). 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. See, e.g., In re Goffe, 641 A.2d 458, 464 (D.C. 1994) (per

curiam).1

In determining what sanction to impose upon an attorney for violations of

the Rules of Professional Conduct, we consider a number of factors, including, “(1)

the nature and seriousness of the misconduct; (2) prior discipline; (3) prejudice to

the client; (4) the [attorney‟s] attitude; (5) circumstances in mitigation and

aggravation; and (6) the mandate to achieve consistency.” Vohra, 68 A.3d at 771.

We also consider “the moral fitness of the attorney” and “the need to protect the

public, the courts, and the legal profession . . . .” In re Howes, 52 A.3d 1, 15 (D.C.

2012) (internal quotation marks omitted). “The purpose of imposing discipline is

to serve the public and professional interests identified and to deter future and

1
Bar Counsel appears to interpret our cases as requiring that any attorney who
engages in “flagrant dishonesty” must be disbarred as a matter of law. We need
not decide whether that interpretation is correct, because we conclude that
disbarment is the appropriate sanction in the particular circumstances of this case.
 11

similar conduct, rather than to punish the attorney.” Kanu, 5 A.3d at 16 (internal

quotation marks omitted).

Boiled down to essentials, the Board‟s findings are that Mr. Baber failed to

competently represent his client; lied to the court; pressured his client to pay an

excessive fee that she had not agreed to pay; improperly used confidential

information from his client to make knowingly false accusations of fraud against

his client in several pleadings; reiterated those false accusations during the

disciplinary process; and failed to show remorse during the disciplinary process.

Assessing that conduct in light of the pertinent factors, we are convinced that Mr.

Baber should be disbarred.

First, Mr. Baber‟s dishonesty was very serious. We have repeatedly stated

that “honesty is basic to the practice of law, and that lawyers have a greater duty

than ordinary citizens to be scrupulously honest at all times.” In re Guberman, 978

A.2d 200, 209 n.10 (D.C. 2009) (internal quotation marks omitted). See Howes, 52

A.3d at 16 (“[T]here is nothing more antithetical to the practice of law than

dishonesty . . . .”) (internal quotation marks omitted). Although an isolated

incident of dishonesty will not ordinarily by itself warrant disbarment, see, e.g., In

re Silva, 29 A.3d 924, 945-46 (D.C. 2011), this case involves a series of knowingly
 12

false statements, not only to Ms. Gripper but also orally to the court, in written

pleadings filed in court, and in a written submission to Bar Counsel. Mr. Baber‟s

dishonesty was also protracted, starting in October 2007 and continuing through to

his December 2009 submission to Bar Counsel. The repeated and protracted

nature of Mr. Baber‟s dishonesty weighs significantly in favor of disbarment. See,

e.g., In re Omwenga, 49 A.3d 1235, 1238 (D.C. 2012) (per curiam) (“Particularly

where dishonesty is aggravated and prolonged, disbarment is the appropriate

sanction.”) (internal quotation marks omitted).

Second, Mr. Baber‟s repeated dishonesty is particularly disturbing because it

came at the expense of his client‟s interests and was in large part driven by a desire

for personal gain. When he lied to the court about why Ms. Gripper had not met

certain deadlines, Mr. Baber “basically threw his client under the bus.” Mr. Baber

also made false statements to Ms. Gripper in an effort to obtain an unreasonable

fee that Ms. Gripper had never agreed to pay. Mr. Baber subsequently betrayed

client confidences and made knowingly false accusations that Ms. Gripper had

engaged in fraudulent conduct. Moreover, as we have noted, Mr. Baber‟s

dishonest conduct caused prejudice to Ms. Gripper. These considerations weigh

significantly in favor of disbarment. See, e.g., Omwenga, 49 A.3d at 1239

(describing attorney‟s conduct as “egregious” because, among other things, it
 13

reflected “a blatant disregard for his clients”); Silva, 29 A.3d at 946 (cases in

which attorneys have been disbarred have involved, among other things, “actions

that abused the attorney-client relationship”); Kanu, 5 A.3d at 15 (attorney‟s lies to

clients “compounded her misconduct,” and court “must view the injury to

[attorney‟s] clients as an aggravating factor”); Goffe, 641 A.2d at 465 (treating as

aggravating factor that attorney acted “in order to obtain an economic benefit”).

Third, the record supports the Board‟s determination that Mr. Baber showed

no remorse during the disciplinary process, but instead repeated his false

accusations against Ms. Gripper and continued to falsely blame Ms. Gripper. Such

circumstances also weigh significantly in favor of disbarment. See, e.g., Howes,

52 A.3d at 20 (attorney‟s “failure to accept responsibility [is] an aggravating factor

in our determination of the appropriate sanction”).

Fourth, we do not see countervailing considerations weighing significantly

against disbarment. It is true that Mr. Baber has no prior disciplinary record. The

aggravated nature of Mr. Baber‟s conduct, however, in our view “overwhelm[s]

any absence of prior or subsequent disciplinary actions.” Howes, 52 A.2d at 20. It

is also true that Mr. Baber‟s dishonesty was limited to a single matter and did not

“permeate” Mr. Baber‟s practice of law. See, e.g., Vohra, 68 A.3d at 787 (in
 14

accepting Board‟s recommendation that attorney be suspended for three years,

court notes that attorney‟s conduct was not as pervasive as conduct involved in

prior case that resulted in disbarment). But given the prolonged and repeated

nature of Mr. Baber‟s conduct, and the other aggravating circumstances, we do not

view it as dispositive that Mr. Baber‟s dishonesty involved one related set of

circumstances. Cf. In re Cleaver-Bascombe, 986 A.2d at 1191, 1199-1201 (D.C.

2010) (per curiam) (disbarring attorney for falsifying single voucher seeking

compensation from court and then lying about voucher). The Board also relied on

Mr. Baber‟s eventual withdrawal of his suit against Ms. Gripper, but we do not

view that circumstance as weighing significantly against disbarment, particularly

given that Mr. Baber has at no point during the disciplinary proceedings showed

remorse or accepted responsibility for his misconduct.

Considering the circumstances of this case as a whole, we conclude that Mr.

Baber demonstrated repeated “indifference to the obligations of honesty in the

judicial system and to the duty of loyalty he owed” to Ms. Gripper. Howes, 52

A.3d at 16. We further conclude that Mr. Baber has shown himself to lack the

“moral rectitude needed to be a member of the legal profession.” Id. Disbarment

of Mr. Baber is therefore warranted, in order “to protect the public, the courts, and

the legal profession . . . .” Id. at 15 (internal quotation marks omitted).
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Finally, we consider the “mandate to achieve consistency.” Vohra, 68 A.3d

at 771. We recognize that “[p]erfect consistency is not achievable in this area,”

Silva, 29 A.3d at 927, because the “imposition of sanctions in bar discipline . . . is

not an exact science but may depend on the facts and circumstances of each

particular proceeding,” Goffe, 641 A.2d at 463. Nevertheless, we conclude that

disbarment rather than suspension is more consistent with our prior cases. We

have disbarred a number of attorneys in circumstances comparable to those of the

present case. See, e.g., Cleaver-Bascombe, 986 A.2d at 1198-1200 (rejecting

Board‟s recommendation of suspension and instead disbarring attorney who

submitted single false voucher for compensation from court and then lied under

oath about voucher; attorney had no prior disciplinary record and did not obtain

payment for voucher; court notes that effort to steal public funds is not

meaningfully different from effort to steal client funds); In re Pelkey, 962 A.2d

268, 280-82 (D.C. 2008) (accepting Board‟s recommendation of disbarment of

attorney who acted dishonestly in business dispute by engaging in conduct that

“amount[ed] to theft,” lied about his conduct, and filed frivolous pleadings;

although attorney had no prior disciplinary record, attorney showed no remorse

and had committed “persistent, protracted, and extremely serious and flagrant acts

of dishonesty” over several years); In re Corizzi, 803 A.2d 438, 441-43 (D.C.
 16

2002) (accepting Board‟s recommendation of disbarment of attorney who suborned

perjury from clients in two separate matters and lied to Board about conduct; even

if attorney was not acting for personal gain, attorney‟s conduct was “egregious”

and “reprehensible,” attorney showed no remorse, attorney was also found to have

committed other serious ethical violations, and there were no mitigating

circumstances); Goffe, 641 A.2d at 463-68 (rejecting Board‟s recommendation of

suspension and instead disbarring attorney who submitted fabricated documents in

two separate matters, once to benefit fiancee and once to benefit himself; although

attorney had no prior disciplinary record, attorney‟s conduct was blatant and

egregious, conduct extended over several years, attorney testified falsely about

conduct and showed no contrition, and there were no other mitigating

circumstances).

Conversely, the cases in which we have imposed suspension generally

involve circumstances significantly less aggravated than those of the present case.

Most significantly, none of them involve an attorney baselessly and maliciously

attacking the client whose interests the attorney was charged with protecting. See,

e.g., Vohra, 68 A.3d at 771-73 (accepting Board‟s recommendation of three-year

suspension, where attorney failed to properly file immigration documents on behalf

of clients, never informed clients that visa applications had been rejected, forged
 17

clients‟ signatures on renewed applications, and lied to clients about status of

applications; attorney refunded clients‟ fee and showed some remorse, and

attorney‟s conduct was not pervasive and was not “grounded in malice”); Silva, 29

A.3d at 941-47 (accepting Board‟s recommendation of three-year suspension,

where attorney lied about filing easement on behalf of client, forged signatures on

document, and lied under oath during disciplinary process; attorney‟s conduct was

not prolonged, related to single matter, and did not involve “abuse[ of] the

attorney-client relationship”); In re Daniel, 11 A.3d 291, 299-301 (D.C. 2011)

(imposing three-year suspension instead of one-year suspension recommended by

Board, where attorney hid assets and lied to the Internal Revenue Service to avoid

paying taxes, showed lack of remorse during disciplinary process, lied to Hearing

Committee, and had previously been informally admonished; no indication that

attorney‟s conduct harmed client); In re Kline, 11 A.3d 261, 265-67 (D.C. 2011)

(imposing three-year suspension instead of eighteen-month suspension

recommended by Board, where attorney‟s negligence led to default judgment and

attorney negotiated settlement without informing client of default judgment, forged

client‟s signature on settlement agreement, and used own funds to pay settlement;

attorney‟s conduct was not protracted, attorney demonstrated remorse and

cooperated with disciplinary investigation, and attorney had no prior disciplinary

history); In re Slaughter, 929 A.2d 433, 446-48 (D.C. 2007) (accepting Board‟s
 18

recommendation of three-year suspension, where attorney fabricated documents

over a period of years to mislead attorney‟s law firm about attorney‟s relationship

with client; although attorney had not expressed remorse or sought to reimburse

firm for loss firm suffered, attorney had no prior disciplinary violations, attorney

did not defraud client for personal gain, no indication that client was prejudiced,

and no indication that attorney lied to court or submitted false documents to court).

We recognize that we ordinarily owe deference to the Board‟s

recommendation as to the proper sanction to be imposed. The Board viewed it as a

close question whether Mr. Baber should be disbarred. We take a significantly

different view of the seriousness of Mr. Baber‟s conduct, however, and we are

convinced that disbarment is the proper sanction. In such circumstances, this court

has not hesitated to reach its own conclusion. See, e.g., Howes, 52 A.3d at 14-25

(disbarring attorney, despite Board‟s recommendation that attorney be suspended);

Cleaver-Bascombe, 986 A.2d at 1198-1200 (same); Goffe, 641 A.2d at 464 (same).

* * * * *

For the foregoing reasons, Mr. Baber is disbarred from the practice of law in

the District of Columbia. For purposes of reinstatement, the period of disbarment
 19

shall run from the date that Mr. Baber files an affidavit in accordance with District

of Columbia Bar Rule XI, § 14 (g). Reinstatement shall be conditioned on Mr.

Baber paying restitution to Ms. Gripper in the amount of $8,093.75, plus interest.

So ordered.