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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-BG-0606
IN RE OSCAR S. MAYERS, JR., RESPONDENT.
A Suspended Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 407619)
On Report and Recommendation of the
Board on Professional Responsibility
(BDN-515-08)
(Submitted March 11, 20151 Decided May 21, 2015)
Oscar S. Mayers, Jr., pro se.
Wallace E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar
Counsel, and Elizabeth A. Herman, Deputy Bar Counsel, were on the brief for the
Office of Bar Counsel.
Before WASHINGTON, Chief Judge, and GLICKMAN, Associate Judge, and
BELSON, Senior Judge.
PER CURIAM: The Board on Professional Responsibility (the Board)
recommends disbarment of Oscar S. Mayers, Jr., respondent, based on numerous
violations of the District of Columbia Rules of Professional Conduct, the most
1
Respondent did not appear for the oral argument scheduled for March 11,
2015. Therefore, we treat the case as submitted on the briefs.
2
serious of which is reckless misappropriation of client funds. We agree with the
Board’s recommendation and order that respondent be disbarred from the practice
of law in the District of Columbia and that, as a condition of reinstatement, he must
pay restitution in the amount of $1,500, plus interest at the legal rate from the date
respondent deposited Shepard’s check, to the Estate of Alexander Shepard or the
Client’s Security Fund.
I.
Respondent has been a member of the Bar of the District of Columbia Court
of Appeals since February 6, 1987. On March 15, 2006, in connection with an
unrelated disciplinary matter involving dishonesty to the court, altering evidence,
and criminal activity, the Board ordered respondent, who at that time was
voluntarily not practicing law, to “give Bar Counsel 90-days’ advance notification
of his intention to resume the practice of law . . . and to submit a medical report . . .
demonstrating his fitness to resume practice” before doing so.
In April 2007, respondent consulted with Alexander Shepard, a former
member of the Metropolitan Police Department of the District of Columbia
(MPD), regarding a potential medical malpractice claim and potential claims
against MPD. Shepard provided respondent with 1,500 pages of medical records;
3
signed a retainer agreement; and gave respondent a check, dated April 22, 2007, in
the amount of $1,500, which contained the words, “MAY-JULY 2007 MONTHLY
LEGAL PYMTS PER AGREEMENT” on the memo line. Respondent conducted
research and provided Shepard with legal advice regarding the viability of his
claim, possible damages, the applicable statute of limitations, and the standard of
care for medical malpractice cases. Respondent deposited the check into his
personal account and failed to keep adequate records regarding the use of the
money deposited. Respondent’s account was neither a trust account nor an IOLTA
account.
Respondent had not provided Bar Counsel with the required ninety-day prior
notification and medical report, as required by the Board’s March 2006 order.
Pursuant to the Board’s recommendation in the underlying disciplinary case, this
court suspended respondent’s license to practice law for eighteen months, effective
March 20, 2008.2 On March 31, 2008, respondent filed an affidavit with this court
in connection with his suspension, in accordance with D.C. Bar Rule XI, § 14 (g),
stating that he did not have any clients, client property or papers, or active matters.
He did so almost one year after his above-mentioned meeting with Shepard.
2
This court found that respondent had committed misconduct by
“submitting altered checks and making false statements to [the] trial court” during
a child support proceeding. In re Mayers, 943 A.2d 1170 (D.C. 2008).
4
On November 5, 2008, Shepard sent a certified letter to respondent
terminating their relationship after he found out that respondent’s license had been
suspended. Shepard requested a refund of all funds paid and that respondent mail
his entire file to one Joseph Thomas within ten days. Shortly afterwards, Shepard
filed a complaint with Bar Counsel stating that he had retained respondent for
representation in a medical malpractice case, but he was unaware that respondent
was prohibited from practicing law. On January 28, 2009, Bar Counsel requested
that respondent provide an explanation of his actions regarding the return of
Shepard’s medical records. In response, respondent indicated that he had returned
the medical records on February 10, 2009.3
Bar Counsel filed specification of charges alleging that respondent had,
among other violations, deposited client’s funds into his personal checking
account, but failed to keep a record of the deposit in violation of Rule 1.15 (d).4
3
As part of its investigation, Bar Counsel subpoenaed respondent’s
computer so that a third party company could create a mirror image of the
computer. Respondent filed a motion to quash the subpoena and while that motion
was pending he gave the computer to Geeks on Call, a computer repair company.
Geeks on Call informed respondent that the computer’s hard drive could not be
repaired and respondent allowed the computer to be destroyed without notifying
the Hearing Committee.
4
The specification of charges also alleged that respondent provided a false
affidavit to the court which stated that he did not have any clients or client
property; held himself out as an attorney while failing to disclose that he was
prohibited from practicing law; failed to refund unearned fees and return Shepard’s
(continued . . .)
5
On April 28, 2011, the Hearing Committee held an evidentiary hearing in which
respondent testified that the $1,500 was not client funds because Shepard was not
his client and was used, in part at least, as reimbursement for the money he had
spent to have Shepard’s medical records reviewed by Dr. Roy Herron.5 The
Hearing Committee did not credit respondent’s testimony, but found that the funds
were advance payment for legal fees and respondent should have held them in
“trust until they were spent on Shepard’s behalf.” The Hearing Committee found,
by clear and convincing evidence, that respondent recklessly misappropriated
client funds, in violation of Rule 1.15 (a); failed to treat unearned fees and
unincurred costs as client property, in violation of Rule 1.15 (d); and failed to
return such funds after termination of the attorney-client relationship, in violation
of Rule 1.16 (d).6
__________________________________
(. . . continued)
medical records; failed to adequately communicate with Shepard; and obstructed
opposing party’s access to evidence by destroying the computer, which he knew
was the subject of Bar Counsel’s subpoena.
5
See footnote 9, which quotes from respondent’s letter to Bar Counsel in
which he stated that he used the entire $1,500 to pay the expert witness.
6
The Hearing Committee also found that respondent knowingly made a
false statement of fact to the court and Bar Counsel when he filed the above-
mentioned false affidavit, in violation of Rules 3.3 (a)(1) and 8.1 (a); knowingly
disobeyed his obligation to inform Bar Counsel that he had resumed practicing, in
violation of D.C. Bar Rule XI, § 2 (b)(3); practiced law while unauthorized to do
so, in violation of Rule 5.5 (a); obstructed Bar Counsel’s access to evidence and
knowingly disobeyed Bar Counsel’s subpoena by allowing his computer to be
(continued . . .)
6
The Board adopted virtually all of the Hearing Committee’s findings and
concluded that respondent’s “recklessness in his misappropriation of Shepard’s
$1,500” was a serious violation of the rules.7 The Board recommends disbarment
of respondent and payment of “restitution in the amount of $1,500, plus interest at
the legal rate from the date respondent deposited Shepard’s check, to the Estate of
Alexander Shepard and/or the Client’s Security Fund.”8
II.
Respondent argues that the specification of charges should have been
dismissed pursuant to Superior Court Rules of Civil Procedure 25 because it was
based on a “nonexistent person,” referring to the fact that Shepard died a year and
a half before the Committee issued its recommendation. Respondent contends that
__________________________________
(. . . continued)
destroyed, in violation of Rule 3.4 (a) and (c); and engaged in the criminal conduct
of dishonesty that seriously interfered with the administration of justice, in
violation of Rule 8.4 (b), (c), and (d).
7
The Board did not find that respondent had, as alleged, violated Rule 3.3
(a)(1), pertaining to the submission of a false affidavit to the Board, or Rule 8.4
(b), regarding respondent’s intention to destroy his computer while it was under
subpoena.
8
Shepard died in January 2012, before the Committee issued its report and
recommendation in June 2013.
7
Rule 25 requires mandatory “dismissal of an action when a suggestion of death is
made . . . and there is not a substitution of the parties made within 90 days.”
Super. Ct. Civ. R. 25. Bar Counsel counters by arguing that “Shepard’s death is
irrelevant to the question whether [r]espondent violated disciplinary rules” and
although the specification of charges mentions Shepard’s name, he is not a party in
the case.
We are unpersuaded by respondent’s argument. Rule 25 of the Superior
Court’s Rules of Civil Procedure does not apply to bar disciplinary proceedings
and, in any event, the complainant is not a party for whom substitution would be
required. See Tippett v. Daly, 10 A.3d 1123, 1126 (D.C. 2010) (en banc) (citing
Super. Ct. Civ. R. 1) (“[T]he rules of civil procedure only govern procedure in
suits of a civil nature.”). The purpose of disciplinary proceedings is not to redress
a complainant’s harm but to determine whether a member of the bar has engaged
in conduct that violates the rules of professional responsibility and calls into
question whether the member should be permitted to practice law. Thus,
Shepard’s death does not bear upon the Board’s determination of respondent’s
misconduct.
8
III.
Respondent argues next that the Board’s conclusion that he misappropriated
client’s funds is not supported by the record. Respondent contends that the record
lacks any evidence of “reckless misappropriation of client funds” because the
funds were used in preparation of Shepard’s case. Bar Counsel argues that the
Board’s conclusion was correct because it was based on the “Hearing Committee’s
finding that respondent was not credible when he testified . . . that the $1,500 were
reimbursement [of] expenses . . . incurred.”
“This court must ‘accept the findings of fact made by the Board unless they
are unsupported by substantial evidence of record, and 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.’” In re Pye, 57 A.3d 960, 962 (D.C. 2012) (quoting In re Cleaver-
Bascombe, 986 A.2d 1191, 1194 (D.C. 2010)). “We recognize, at the same time,
that the Board on Professional Responsibility has ‘substantial expertise in the area
of attorney discipline.’” In re Abrams, 689 A.2d 6, 9 (D.C. 1997) (en banc)
(quoting In re Ray, 675 A.2d 1381, 1385 (D.C. 1996)). “The Board’s views as to
9
the issue before us, while not dispositive or presumptively dispositive, merit
respectful consideration.” Id.
Although the Board found that respondent violated several rules of
professional responsibility, respondent focuses only on the Board’s finding that he
misappropriated client funds. That finding, however, is supported by the record.
“Rule 1.15 (a) states . . . that a lawyer shall hold property of clients . . . that is in
the lawyer’s possession in connection with a representation separate from the
lawyer’s own property and that such funds shall be kept in a separate account
maintained in a financial institution.” In re Edwards, 990 A.2d 501, 518 (D.C.
2010) (internal quotation marks omitted). “[M]isappropriation includes any
unauthorized use of a client’s funds entrusted to his or her lawyer . . . .” Id.
Reckless “misappropriation reveal[s] an unacceptable disregard for the safety and
welfare of entrusted funds.” In re Anderson, 778 A.2d 330, 338 (D.C. 2001).
The record shows that Shepard made out a $1,500 check payable to
respondent with “MAY-JULY 2007 MONTHLY LEGAL PYMTS PER
AGREEMENT” written on the memo line. There was a $1,500 deposit placed into
respondent’s bank account on May 7, 2007. Fernando Fuentes, assistant branch
manager of Capital One Bank, testified that the funds were deposited into
respondent’s personal bank account. Anderson, 778 A.2d at 338 (explaining that
10
reckless misappropriation exists where there is “indiscriminate commingling of
entrusted and personal funds”). Respondent testified to receiving the check from
Shepard, but did not remember the amount of the check or whether he deposited it
into his account. However, respondent admitted to sending a letter to Bar Counsel
which stated that the funds were used as reimbursement for the expense he
incurred when he had Dr. Herron review Shepard’s medical records.9 Respondent
also testified that he paid Dr. Herron some money, although he didn’t charge him a
particular fee, but respondent could not remember the specific amount.
Respondent further stated that he had taken Dr. Herron out for lunch and dinner
several times to discuss Shepard’s potential case, but did not remember if those
meetings cost $1,500. Respondent failed to provide any supporting evidence for
his assertions, nor was there a $1,500 withdrawal from his bank account which
would have corroborated that he paid the funds to Dr. Herron. Respondent’s bank
records for that period contain several withdrawals, none of which involve legal
expenses, and show that the account balance fell below the amount of the check.
Accordingly, we are satisfied that the Board’s conclusion of reckless
misappropriation was supported by substantial evidence in the record.
9
In a letter to Bar Counsel of November 26, 2008, at page 5, respondent
wrote: “Mr. Shepard offered to pay for this time of the expert in which he tendered
a check for $1,500 which I forwarded on to the medical expert.” In a subsequent
letter of February 11, 2009, at page 5, respondent wrote: “Mr. Shepard never sent
me any checks. The only check he sent was for the medical consultation in the
amount of $1,500, there were no other checks.”
11
IV.
Respondent also argues that Bar Counsel withheld discoverable evidence
that Shepard was under investigation for tax fraud and that his bank accounts had
been “levied by the [Internal Revenue Service].” Respondent admits that the
investigation of Shepard’s tax violation was public information, but argues that had
Bar Counsel revealed this information he could have proven that Shepard’s check
was “bogus.” Inconsistently, respondent admitted in testifying before the Hearing
Committee that the $1,500 in question was used as reimbursement for the money
he had spent to have Shepard’s medical records examined by Dr. Herron.
Respondent has not established how the information about a criminal investigation
concerning Shepard would have supported his position or how he was prejudiced
by not being informed about it.
V.
For the foregoing reasons, and in consideration of the entire record, we agree
with the Board’s recommendation. See In re Addams, 579 A.2d 190, 191 (D.C.
1990) (en banc) (“[I]n virtually all cases of misappropriation, disbarment will be
the only appropriate sanction unless it appears that the misconduct resulted from
nothing more than simple negligence.”). Respondent is disbarred from the practice
12
of law in the District of Columbia and shall pay restitution in the amount of
$1,500, plus interest at a legal rate from the date respondent deposited Shepard’s
check, to the Estate of Alexander Shepard or the Client’s Security Fund, as a
condition of reinstatement. For purposes of reinstatement, the period of
disbarment shall run from the date that respondent files an affidavit in accordance
with District of Columbia Bar Rule XI, § 14 (g).
So ordered.