In re John H. Kitchings
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 99-BG-1023
IN RE JOHN H. KITCHINGS, RESPONDENT
On Exception of Respondent to Report and Recommendation
of the Board on Professional Responsibility
(Argued September 7, 2000
Decided August 30, 2001)
H. Clay Smith, III, Assistant Bar Counsel, with whom Leonard H. Becker, Bar
Counsel at the time the brief was filed, for Bar Counsel.
Elizabeth J. Branda, Executive Attorney, for the Board on Professional
Responsibility.
Harry Tun for respondent.
Before RUIZ and WASHINGTON, Associate Judges, and GALLAGHER, Senior Judge.
RUIZ, Associate Judge: At the crux of this case lies a dispute between the Board on
Professional Responsibility and Bar Counsel over the scope of the latter's authority to resolve
cases based on a set of stipulated facts.
Bar Counsel charged John H. Kitchings with fifteen counts of various violations of
the Rules of Professional Conduct, including neglect (Rule 1.3), failure to keep his clients
informed (Rule 1.4), and failure to protect a client's interest after representation ended (Rule
2
1.16). Kitchings ultimately disputed none of these charges.1 Instead, he signed two
stipulations: the first admitted the substance of three counts, and the second admitted the
remaining twelve.
Kitchings also signed a memorandum of understanding indicating that the
“appropriate” sanction for the three violations of the first stipulation, “aggravat[ed]” by the
twelve counts of the second stipulation, was a six-month suspension, with reinstatement
conditioned upon a showing of fitness. The memorandum indicated that it did not bind the
hearing committee, the Board, or this court, and that Bar Counsel retained the authority to
prosecute any counts not considered by this court as a basis for discipline.
The
memorandum stated that Kitchings signed it “to avoid the burden and expense of defending
against further charges that would arise from [his] conduct as set forth in the Second
Stipulations.”
In its Report, the Board rejected the second set of stipulations and the memorandum
of understanding on three separate grounds. First, the Board found them to be a “plea
bargain” or “negotiated disposition” beyond the authority of Bar Counsel. Second, Bar
Counsel had no power, according to the Board, to urge the hearing committee to dismiss the
charges of the second stipulation when contact members appointed by the Board had not
1
Counsel.
A sixteenth count was contested by Kitchings, but was later abandoned by Bar
3
given him permission to do so. Third, the Board found that Kitchings had signed the
memorandum agreeing to a six-month suspension and the second stipulation under duress
because of threats that Bar Counsel purportedly made to him.
Instead, the Board
recommended a thirty-day suspension, based solely on the violations admitted in the first
stipulation, and directed Bar Counsel to continue to prosecute the other twelve charged
violations.
We disagree with the Board's analysis. Although Bar Counsel in this case did not
proceed in the usual manner, there was no unauthorized dismissal or plea bargain. Rather,
the twelve counts of the second stipulation formed the basis for an enhanced sanction – a sixmonth suspension with a fitness requirement – in the nature of aggravating factors. We see
nothing more than harmless error in the failure of Bar Counsel to obtain preapproval from
contact members. Because nothing was dismissed, and the memorandum expressly provided
that the Board was not bound by its terms, Bar Counsel did nothing more than try to
anticipate – in this case incorrectly – the decision of the contact members. We also
conclude that the Board erred in not deferring to the findings of the hearing committee with
respect to duress. The presence of duress is a matter of fact, see Sind v. Pollin, 356 A.2d
653, 656 (D.C. 1976), and the Board must accept factual findings supported by substantial
evidence, such as these. See In re Micheel, 610 A.2d 231, 234 (D.C. 1992). We thus
remand this matter to the Board for a recommendation of a sanction consistent with all
fifteen violations. See In re Drury, 683 A.2d 465, 468 (D.C. 1996) (holding that this court
4
defers to the Board’s recommended disposition “unless the sanction is unwarranted or
inconsistent with sanctions for comparable conduct”).
FACTS
1. Alleged Misconduct
Kitchings, engaged in a solo personal injury practice between 1991 and 1997,
accepted more cases than he could ethically maintain. At least some of his clients suffered
from his overwork. In one instance, he failed to return his client's telephone calls. In
another, he accepted a settlement check from an insurer but failed to pass that check to his
client, or even inform the client that it had been received. In still another matter, he failed
to forward files to successor counsel after being fired by his client. All fifteen counts involve
this same pattern of neglect, failure to inform, and dereliction of other duties.
2.
Procedural History
Bar Counsel, with the approval of a contact member, presented a three-count
stipulation to a hearing committee on July 23, 1997.2 On September 18, Bar Counsel
presented a second set of stipulations outlining an additional twelve counts, as well as a
memorandum of understanding. At the time the second stipulation was presented to the
2
A fourth count was dropped. See note 1, supra.
5
hearing committee, none of the twelve cases it described had been approved for prosecution
by a contact member, contrary to the rules of the D.C. Bar. See D.C. Bar R. XI, § 8(b).
The memorandum of understanding, signed by Kitchings, stated that “the appropriate
sanction” for all fifteen charges described in the first and second stipulations should be “a
six-month suspension, with . . . reinstatement conditioned upon a showing of fitness.” The
memorandum indicated that this sanction would not bind the hearing committee, the Board
or this court, and that Bar Counsel would remain free to prosecute any cases not considered
by the court in aggravation, and to introduce these cases as evidence against Kitchings if he
were ever to seek reinstatement. The last paragraph stated that Kitchings submitted the
memorandum to “avoid the burden and expense of defending against further charges that
would arise from [his] conduct.”3
3
The entire memorandum states as follows:
1.
I, John H. Kitchings, am the Respondent in the abovereferenced proceeding involving four petitioned matters. [Bar
docket No. 214-96, 220-96, 298-96, 326-96].
2.
I understand that the Office of Bar Counsel is prepared
to petition additional charges against me, based upon 12
disciplinary complaints currently pending against me that allege:
(a) failure to act with reasonable promptness in representing a
client; (b) failure to keep client reasonably informed about the
status of a matter and/or to comply promptly with reasonable
requests for information; (c) in connection with termination of
representation of a client, failure to take reasonable steps to the
extent reasonably practicable to protect client interests; (e)
(continued...)
6
3
(...continued)
failure to represent clients zealously and diligently within the
bounds of the law; (f) failure to represent clients competently
and (g) failure to represent clients with the requisite skill and
care.
3.
Accompanying this memorandum, and incorporated by
reference, is a document titled “Second Joint Stipulations of
Fact” (“Second Stipulations”). I acknowledge that the facts set
forth in the Second Stipulations accurately describe my conduct
in the docketed matters referred to therein. I further
acknowledge that if these matters were to proceed to a hearing,
Bar Counsel would prove these facts by clear and convincing
evidence, and that I could not successfully defend myself
against them.
4.
I am aware that District of Columbia Court of Appeals
Rule XI, § 17 provides for the confidentiality of the matters set
forth in the Second Stipulations at the present stage of Bar
Counsel's investigations of the matters referred to, and I
knowingly and intelligently waive confidentiality.
5.
In light of my misconduct in Bar Docket Number 214-96
et al., aggravated by the conduct described in the Second
Stipulation; I understand that the appropriate sanction in the
present proceeding should be a six-month suspension, with my
reinstatement conditioned upon a showing of fitness. If for any
reason the Court of Appeals does not consider in aggravation of
the misconduct in 214-96 et al., the cases referred to in the
Second Stipulations, I understand that Bar Counsel may
prosecute the 12 cases, or any of them, based upon the Second
Stipulations. In any event, Bar Counsel may refer to the facts
and circumstances of the cases if and when I petition for
reinstatement.
6.
I understand that neither the Hearing Committee, the
Board on Professional Responsibility nor the District of
Columbia Court of Appeals is bound by this understanding and
(continued...)
7
Before the hearing committee, Kitchings appeared to recant portions of the second
stipulation. For example, when asked about his alleged failure to deliver a client's file, he
claimed that the stipulation was wrong. When asked why he signed the stipulation,
Kitchings accused Bar Counsel of intimidating him,“harass[ing]” him, and threatening to
“make it difficult” if he did not admit to the second set of charges. Despite these complaints,
Kitchings declined to rescind his agreement when the Hearing Committee afforded him an
opportunity to do so.
Nearly three months later, during a second hearing devoted to the issue of duress, the
hearing committee again gave Kitchings an opportunity to rescind his agreement. For the
second time, he did not, explaining that although he felt that Bar Counsel had “intervened
in an unfair manner,” upon reflection, he would nevertheless “stand by [his] signature.”
After the close of evidence, Bar Counsel recommended imposition of the six-month
suspension specified in the memorandum, explaining that its recommendation was based on
a pattern of neglect that had emerged from all fifteen counts. Curiously, Bar Counsel also
3
(...continued)
agreement.
7.
Because I wish to avoid the burden and expense of
defending against further charges that would arise from my
conduct as set forth in the Second Stipulations, I submit this
memorandum of understanding.
8
informed the hearing committee that, if it concurred with that sanction, the complaints of the
second stipulation would be “deemed dismissed,” without prejudice to Bar Counsel's right
to reactivate them if the six-month suspension was rejected by this court.
While the hearing committee was considering the fifteen claims and the recommended
six-month suspension with reinstatement conditioned on a showing of fitness, Bar Counsel
submitted the twelve charges of the second stipulation for contact member review and
approval, an action which, under Bar Counsel’s rules, should have been completed before
presenting the charges to the hearing committee. See D.C. Bar R. XI, § 8(b). Bar Counsel
recommended to the two contact members involved that the charges of the second stipulation
be “deemed dismissed” for “record-keeping purposes,” despite the fact that all twelve
charges were being considered by the hearing committee as part of an overall pattern of
misconduct. The contact members, at the direction of the Board, declined to deem the
charges dismissed, and instead directed Bar Counsel to “prosecute” them.
The hearing committee adopted Bar Counsel's recommendation, but the Board
rejected it. The Board found that Bar Counsel had no authority to promise a “plea bargain,”
that Bar Counsel had no power to dismiss charges without contact member approval, and
that, in any event, the Respondent's agreement to the second stipulation and memorandum
was “not entirely voluntary.” The Board recommended a 30-day suspension based on the
first stipulation, and directed Bar Counsel “to prosecute the additional cases unless and until
9
the Board recommends a fitness requirement.” The Board also urged this court to adopt a
set of rules governing negotiated dispositions in general. Respondent Kitchings excepts to
the Board’s recommendation and stands by the terms of his memorandum of understanding
with Bar Counsel.
ANALYSIS
1.
Characterizing the Memorandum of Understanding
As a preliminary matter, we note that both the Board and Bar Counsel used words in
a manner inconsistent with their ordinary meaning throughout these proceedings. Bar
Counsel urged that claims that it was presenting to the hearing committee be “deemed
dismissed.” The Board directed Bar Counsel to “prosecute” claims that already had been
presented to the hearing committee. The Board discerned a “plea bargain” where nothing
had been bargained for.
We reject this terminology and will adhere to common legal usage. A “dismissal” is
the “[t]ermination of an action . . . without further hearing.” BLACK'S LAW DICTIONARY 482
(7th ed. 1999). To “prosecute” is to “carry out a legal action.” Id. at 1237. A “plea bargain”
is a “negotiated agreement” in which a party “pleads guilty to a lesser offense or to one of
multiple charges in exchange for some concession by the prosecutor, usually a more lenient
sentence or a dismissal of the other charges.” Id. at 1173.
10
This clarification of terms settles the principal issue raised by this case. The Board
contends that Bar Counsel exceeded its authority because it had no power to “dismiss”
certain charges through a “plea bargain” or “negotiated disposition.” We cannot agree,
because we perceive no true dismissal or plea bargain in Bar Counsel’s actions. Bar Counsel
presented all fifteen counts to the hearing committee, the Board and this court, and included
them in his recommended sanction. If any of the counts were not taken into account in the
sanction imposed as part of this proceeding, Bar Counsel retained the authority to prosecute
them separately. The memorandum also made clear that all fifteen charges could be raised
if Kitchings were to petition for reinstatement. Moreover, Kitchings was given no form of
leniency – Bar Counsel recommended a sanction that it deemed “appropriate” for all fifteen
violations. The hearing committee concurred in that assessment, and the Board has never
contended that Bar Counsel’s recommended sanction would be inappropriate had all charges
been formally prosecuted. The purpose of the memorandum was not to reduce Kitchings's
penalties, but, by its terms, to allow him to avoid the cost of litigation.4
Because we do not consider that the memorandum is a plea bargain or negotiated
4
The Board also contends that the agreement was ambiguous because the
“Memorandum of Understanding did not state what Bar Counsel was promising in exchange
for Respondent's stipulation to the misconduct in the 12 complaints, apart from providing
that if the 12 complaints were not considered in aggravation of sanction in the three
petitioned matters, Bar Counsel could prosecute them.” We disagree with the Board's
interpretation: the lack of a promise by Bar Counsel is evidence that the memorandum is not
a negotiated disposition, not that it was ambiguous.
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settlement, we need not reach the scope of Bar Counsel's authority to engage in such
agreements.5
2.
Contact Member Approval
The Board also contends that Bar Counsel’s recommendation should be rejected
because he failed to obtain the approval of a contact member before submitting the second
stipulation to the hearing committee. Under D.C. Bar Rules, Bar Counsel may not dismiss
a complaint, institute formal charges, or informally admonish an attorney without the prior
approval of a contact member appointed by the Board. See D.C. Bar R. XI, § 8(b).6
We have no doubt that Bar Counsel must follow the rules that have been established
to govern Counsel’s activities. Although, as the quasi–independent prosecutorial arm of the
5
We also decline to consider the set of rules governing negotiated dispositions urged
by the Board because we do not “decide more than the occasion demands.” District of
Columbia v. WICAL Ltd. Partnership, 630 A.2d 174, 182 (D.C. 1993) (quoting Younger v.
Smith, 30 Cal. App. 3d 138, 153 (1973)); see also Smith v. Worksman, 99 A.2d 712, 713
(D.C. 1953) (holding that this court “will not decide abstract, hypothetical, or moot
questions, the determination of which will lead to no practical relief”).
6
D.C. Bar R. XI, § 8(b) reads in relevant part:
[u]pon the conclusion of an investigation, Bar Counsel may,
with the prior approval of a Contact Member, dismiss the
complaint, informally admonish the attorney under
investigation, or institute formal charges; or may, with the prior
approval of a member of the Board on Professional
Responsibility, enter into a diversion agreement.
12
court, Bar Counsel is not technically an “agency,” Bar Counsel similarly is “bound to follow
its own rules and regulations.” Braddock v. Smith, 711 A.2d 835, 840 (D.C. 1998) (quoting
Macauley v. District of Columbia Taxicab Comm'n, 623 A.2d 1207, 1209 (D.C. 1993)).
Nevertheless, failure to do so is harmless if that error had no effect on the outcome of the
proceeding. See id. (holding that failure of an agency to follow its rules “will not lead to
reversal where the petitioner has not been prejudiced by the deviation from required
procedures”); see also Wisconsin Avenue Nursing Home v. District of Columbia Comm'n on
Human Rights, 527 A.2d 282, 289 (D.C. 1987) (holding that prejudice exists “only if
substantial doubt exists whether the agency would have made the same ultimate finding with
the error removed”). That reasoning holds even more in bar discipline cases, where the court
is the ultimate sanctioning authority, see In re Slattery, 767 A.2d 203, 215 (D.C. 2001), and,
when deference is owed in the area of sanctions, that deference is owed to the Board, not to
Bar Counsel. See D.C. Bar R. XI, § 9 (g). Here, the Board contact members reviewing the
second stipulation directed Bar Counsel to prosecute the twelve charges it contained. What
Bar Counsel did when he earlier had presented these charges (admitted by the respondent in
the stipulation) to the hearing committee was, in essence, to prosecute those charges,7 and
therefore its failure to obtain preapproval was harmless.
7
The Board does not challenge Bar Counsel’s authority to prosecute claims by
stipulation, dispensing with the usual evidentiary function of the hearing committee. That
is what occurred here with respect to the claims in the first stipulation, as to which no issue
has been raised. We fail to see a meaningful distinction between a prosecution based on
disputed facts and one based on stipulation, which proceeds directly to the issue of sanction.
13
3.
Voluntary Assent by Kitchings
The Board also urges this court to reject the second stipulation because Kitchings
signed it under duress, and because the hearing committee's “implicit” finding of
voluntariness was not supported by “specific findings” that Respondent's participation in the
negotiated disposition was voluntary, that he understood the agreement's terms and
ramifications and that he admitted the misconduct to which he stipulated. We disagree with
the Board on both points.
First, we hold that the Board failed to accord sufficient deference to the hearing
committee’s findings of fact. “The Board is obliged to accept the hearing committee's factual
findings if those findings are supported by substantial evidence in the record, viewed as a
whole.” In re Micheel, 610A.2d at 234. The presence of duress is a question of fact, see
Sind, 356 A.2d at 656; see also Johnson v. Johnson, 401 A.2d 962, 965 (D.C. 1979)
(quoting Klein v. Klein, 544 P.2d 472, 475 (Utah 1975), for the proposition that the question
of whether a party agreed to and should be bound by a stipulation is one of fact for the trial
court to determine), and the hearing committee's finding was supported by substantial
evidence: Kitchings testified in September that he signed the second stipulation of his own
accord, and, after a three month opportunity to reconsider his testimony, he reiterated in
December that he signed the stipulation voluntarily. The Board was therefore obliged to
accept the hearing committee's finding.
14
Second, although we agree with the Board that the hearing committee report lacks
explicit findings on this point, it is apparent on the face of the record that the hearing
committee considered, and rejected, that respondent signed the memorandum under duress.
Indeed, the sole purpose of the December hearing was to explore that issue. In this context,
the committee’s reference to the first and second stipulations as “the accepted facts of the
case” leaves no doubt that the committee implicitly found Kitchings’s signature to be
voluntary. Failure to note this expressly in the committee report was an oversight that in no
way affected the outcome of the case, and does not constitute grounds for reversal by the
Board. Cf. Wisconsin Avenue Nursing Home, 527 A.2d at 289 (holding that an error is
reversible only if substantial doubt exists over whether the ultimate finding would be
different with the error removed).
CONCLUSION
We conclude that the Board on Professional Responsibility erred in declining to
consider the twelve counts listed in the second stipulation, and remand to the Board to
recommend a disposition in light of all the charges identified by the hearing committee.
So ordered.
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