In re Johnson, III ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-BG-240
IN RE JOHNNIE L. JOHNSON, III, RESPONDENT.
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 235614)
On Report and Recommendation of the
Board on Professional Responsibility
(Bar Docket No. 2016-D112)
(Board Docket No. 17-BD-003)
(Argued December 8, 2020 Decided May 26, 2022)
Johnnie L. Johnson, III, pro se.
Hamilton P. Fox, III, Disciplinary Counsel, with whom Julia L. Porter,
Deputy Disciplinary Counsel, and Myles V. Lynk, Senior Assistant Disciplinary
Counsel, were on the brief, for the Office of the Disciplinary Counsel.
Before EASTERLY and MCLEESE, Associate Judges, and WASHINGTON,
Senior Judge.
PER CURIAM: The present disciplinary matter comes to us from the Board of
Professional Responsibility’s (“the Board”) review of an Ad Hoc Committee (“the
Committee”) Report and Recommendation that respondent Johnnie L. Johnson, III
be disbarred for flagrant dishonesty. The issues on review are whether the Board’s
factual findings, ultimately based on the Committee’s, are supported by substantial
2
evidence, and whether the recommended sanction of disbarment is consistent and
warranted. For the reasons below, we adopt the Board’s factual findings as
supported by substantial evidence and concur that disbarment is the appropriate
remedy.
I. Background
H.G., a former D.C. Public Schools bus driver, unsuccessfully pursued an
appeal of termination of his workers’ compensation benefits in June 2012. Soon
afterwards, in the same month, he met respondent Johnnie L. Johnson, III and
engaged him as an attorney to represent him in continuing his workers’
compensation appeal. Johnson represented H.G. from June 2012 until August
2015 when H.G. retained new counsel, Harold Levi, to replace Johnson in his
ongoing workers’ compensation case.
In June 2012, Johnson entered his appearance as counsel for H.G. in the
workers’ compensation appeal. In July 2012, he filed a two-page application for a
formal hearing that H.G. had filled out by hand and to which Johnson added two
type-written sentences. In September 2012, Johnson propounded seemingly
boilerplate discovery requests. He also filed a short brief in opposition to the
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District’s September 2012 motion to dismiss H.G.’s claim based on a failure to
comply with a scheduling order. In November 2012, Johnson attended a forty-five
to sixty-minute hearing where H.G. testified; however, H.G. stated at the later
disciplinary hearing that Johnson did not meet with him ahead of time or prepare
him for this workers’ compensation hearing. While awaiting a decision from the
administrative law judge (“ALJ”), Johnson prepared a half-page letter to an insurer
who had notified H.G. that it would terminate his accident insurance, explaining
the pending workers’ compensation appeal and claiming the District was
responsible for the premiums.
In June 2014, the ALJ granted H.G.’s claims for medical treatment and wage
loss benefits. In an application for review of that decision, Johnson claimed that
the ALJ erred in failing to award attorney’s fees and cited to a provision of D.C.
Code § 1-623.27(b) (2016 Repl.) that limits the amount of and manner in which
one may obtain attorney’s fees in a workers’ compensation claim (no more than
twenty percent of the total awarded to the client, only after ALJ approval, and only
from the D.C. government). In July 2014, the day before filing that application,
Johnson received a check for $58,050.63 payable to H.G. Four days later, Johnson
called H.G. to inform him of receiving the check and to make arrangements to
meet two days later at a Wells Fargo bank branch in Maryland.
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At that meeting in July 2014, Johnson informed H.G. that he was entitled to
one-third of the total amount of the check ($19,350.21). Johnson and H.G.
endorsed the check, and the bank issued two cashiers’ checks – one to H.G. for
$37,700.42 and the other to Johnson for $19,350.21 – along with $1,000 in cash for
H.G. Johnson provided a memorandum to H.G. that stated,
This office agreed to represent you for an agreed upon
fee of 33 1/3% of the settlement amount or award in
you[r] matter. Accordingly, this office received a check
in the amount of $58,050.63 as a resolution of your case.
Although there may be additional funds owed to you in
this matter, this office’s agreed upon fees out of the
settlement is $19,350.21, which represents 33 1/3% of
$58,050.63. Thus your share of the $58,050.63 is
$[]38,700.42. This is $19,350.21 plus $38,700.42 equals
$58,050.63.
In July 2014, the District filed an application for review of the decision
granting H.G. benefits, as well as an opposition to Johnson’s application for review
in order to obtain attorney’s fees. Johnson did not respond to the District’s
application for review. Pending review of both applications – Johnson’s
concerning attorney’s fees and the District’s – Johnson sent a letter to the
administrator for the District’s workers’ compensation system requesting a lien on
payments to H.G., among other claimants that Johnson represented, without
disclosing that he had already received one-third of H.G.’s award or telling H.G.
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that he sought the lien. Johnson’s application for review concerning attorney’s
fees was denied and the District’s application was granted, resulting in H.G.’s
claim being remanded. Johnson filed an appeal of the remand order but failed to
respond to this court’s show cause order for why a petition for review of a non-
final order should not be dismissed, resulting in dismissal of that appeal. In July
2015, the ALJ issued a compensation order on remand reinstating H.G.’s benefits
without further hearing or additional briefing.
Before resolution of his workers’ compensation appeal, H.G. filed a request
for fee arbitration and a complaint against Johnson with the D.C. Bar. After
receiving the ALJ’s compensation order, H.G. wrote to the ALJ in July 2015
requesting that Johnson be released from representing him and attached Johnson’s
memorandum memorializing the one-third fee that he received in July 2014. In
October 2015, the ALJ issued an order to Johnson to show cause why he should
not be referred to Disciplinary Counsel for taking a fee in excess and violation of
D.C. Code. Johnson replied to this order and claimed that he believed the payment
was approved and that it also represented other legal work he had done for H.G.
The ALJ notified Disciplinary Counsel in March 2016, and reported that Johnson
had taken a fee of $20,350.21 in excess and violation of D.C. Code. This reported
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amount was based on a document provided to the ALJ from H.G. and included a
$1,000 error in the total.
After H.G.’s workers’ compensation appeal had been resolved on remand,
his new counsel, Mr. Levi, was preparing his petition for attorney’s fees and
contacted Johnson in July 2016. Mr. Levi asked Johnson how much of a fee
Johnson had received from H.G. and said that he understood it to be one-third.
Johnson avoided answering directly Mr. Levi’s questions and instead denied
having taken $20,350.21 or a thirty-five percent fee (apparently a reference to the
erroneous amount in the ALJ’s referral to Disciplinary Counsel). He also gave
details about the scope and nature of his representation of H.G. that were
inaccurate.
Also in July 2016, Johnson filed a fee petition seeking $40,324.66 in
attorney’s fees. This petition failed to disclose the $19,350.21 that he had already
received from the check in July 2014. Nor did the petition disclose that it was
recreated from memory after the fact. In truth, Johnson had no time records from
his representation of H.G. Many of the entries appeared exaggerated given the
type of work performed or the amount of time it was documented to have actually
taken. For example, Johnson claimed two hours (at $500 per hour) for his initial
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meeting with H.G. in June 2012, which, in fact, took less than an hour. Finally,
some entries in his fee petition covered work for services performed after H.G. had
discharged Johnson, such as three hours preparing his response to the ALJ’s
October 2015 order to show cause why he should not be referred to Disciplinary
Counsel. H.G. and the District objected to Johnson’s fee petition. The ALJ denied
the fee petition in February 2017.
From May to October 2016, Disciplinary Counsel requested Johnson’s
cooperation to answer questions and provide documents, but his conduct was
disobliging. For example, he claimed the check for $58,050.63 was not an award
of H.G.’s benefits, and he failed to produce certain requested documents, such as
financial records. Johnson’s conduct was not any more helpful at the disciplinary
hearing. For example, he initially testified that he did not receive any money from
H.G. at all. He later testified that H.G. had given him money, but that it was for
less than $19,000 and not for attorney’s fees.
The Committee made the above factual findings and recommended
disbarment on the ground of flagrant dishonesty. The Board adopted the
Committee’s report and recommendation as supported by substantial evidence.
The present review followed.
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II. Substantial Evidence of Charged Violations
“In disciplinary cases, the Board must accept the Hearing Committee’s
evidentiary findings, including credibility findings, if they are supported by
substantial evidence in the record. This court, in turn, must accept the Board’s
findings of fact, and we also apply the ‘substantial evidence’ standard. We review
the Board’s conclusions of law de novo.” In re Cleaver-Bascombe I, 892 A.2d
396, 401-02 (D.C. 2006) (citations omitted); see also D.C. Bar R. XI, § 9(h)(1)
(“In determining the appropriate order, the Court shall accept the findings of fact
made by the Board unless they are unsupported by substantial evidence of
record.”).
Because the reports and recommendations below are voluminous and
meticulously detailed, we will not cite to every factual example, exhibit, excerpt of
the transcript, and so forth. Rather, we conclude that substantial evidence of each
charged violation is supported by a handful of notable examples upon which we
will focus our review.
A. The Board’s Report and Recommendation
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1. Duty to Communicate – Rule 1.4(b)
Rule 1.4(b) of the D.C. Rules of Professional Conduct provides that “[a]
lawyer shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.” Comment three to that
Rule states that “[t]he guiding principle is that the lawyer should fulfill reasonable
client expectations for information consistent with (1) the duty to act in the client’s
best interests, and (2) the client’s overall requirements and objectives as to the
character of representation.” Therefore, “[t]o meet that expectation, a lawyer not
only must respond to client inquiries but also must initiate communications to
provide information when needed. A lawyer may not withhold information to
serve the lawyer’s own interest or convenience.” In re Ekekwe-Kauffman, 210
A.3d 775, 789 (D.C. 2019) (citations, quotation marks, and brackets omitted).
The Board’s findings of fact concerning Rule 1.4(b) were that Johnson failed
to inform his client of rules governing attorney’s fees in a workers’ compensation
claim, notably that the fee cannot exceed twenty percent of the actual award
secured, that it is paid directly from the D.C. government, and that it must be
approved by an ALJ. These factual findings are supported by substantial evidence.
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Johnson knew of D.C. Code § 1-623.27. H.G. testified that Johnson did not tell
him about this code provision and its limitations on attorney’s fees, which Johnson
acknowledged in his hearing before the Committee. After receiving the check for
H.G.’s workers’ compensation award, he met with his client at a bank and had
H.G. sign the check and split the money; two-thirds went to the client and one-
third went to Johnson. This fee arrangement was memorialized in a memorandum
to H.G. from Johnson’s office. Two months later, H.G. learned from a “friend of a
friend” that Johnson was required to seek his fee from the District instead of the
client, something that he had not told his client.
Reviewing de novo the Board’s legal conclusion that the above factual
findings rise to the level of a Rule 1.4(b) violation, we hold that they do. First, the
facts indicate that Johnson knew of the statute and failed to inform his client.
Second, the fact that he arranged for and actually accepted a fee in excess and in
violation of that statute indicates that this failure to communicate was motivated by
his own interest (obtaining a higher-than-permitted fee) and convenience
(receiving that fee immediately instead of waiting for the ALJ to approve it and the
D.C. government to pay it). Therefore, we adopt the Board’s findings and
conclusions because they are supported by substantial evidence.
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2. Unreasonable Fee – Rule 1.5(a)
Rule 1.5(a) of the D.C. Rules of Professional Conduct provides that “[a]
lawyer’s fee shall be reasonable.” Furthermore, “[a]ny fee that is prohibited . . . by
law is per se unreasonable.” D.C. R. Prof. Conduct 1.5(f). We set out two
additional ways in which an attorney may violate Rule 1.5(a) in Cleaver-Bascombe
I,
The prototypical circumstance of charging an
unreasonable fee is undoubtedly one in which an attorney
did the work that he or she claimed to have done, but
charged the client too much for doing it. This case is
different, for the allegation is that Respondent sought
compensation for work that she did not do at all.
Nevertheless, the Hearing Committee and the Board both
concluded that charging any fee for work that has not
been performed is per se unreasonable. We agree. It
cannot be reasonable to demand payment for work that
an attorney has not in fact done.
892 A.2d at 403.
The Board’s factual findings regarding Rule 1.4(b) were that Johnson
accepted a fee above the statutory cap of twenty percent of the total award his
client received, and for a small amount of work actually performed and at rates not
normally permitted in workers’ compensation cases. There is substantial evidence
in the report to support the Board’s factual findings. We reference the factual
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findings regarding Rule 1.4(b) mentioned above and reiterate that they are
substantial evidence that Johnson charged and accepted a fee prohibited by D.C.
Code.
Furthermore, Johnson’s documented work on his client’s case ranged from
short letters lacking substance and a form to which he added little if anything to
seemingly boilerplate discovery requests and a short (three-page) opposition brief.
In addition to work product, Johnson attended a pre-hearing conference and argued
his client’s case in a hearing before an ALJ that took forty-five minutes to an hour;
the latter without meeting with his client ahead of time or preparing him to testify
in that hearing.
Lastly, Johnson petitioned the D.C. government for attorney’s fees for work
that he did not do. For example, his fee petition asserted hours worked in
responding to a motion pending as of June 2012, when – as Johnson acknowledged
at hearing – no such motion was pending in June 2012. Other assertions in the fee
petition concerned work performed, allegedly on his client’s behalf, after the date
that his client terminated his representation.
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Reviewing the Board’s legal conclusions de novo, we hold that the findings
above demonstrate a violation of Rule 1.5(a). First, the fee in excess of twenty
percent was prohibited by statute and is per se a violation of the rule. Second, the
apparently perfunctory nature of the work actually performed did not warrant such
a hefty fee. Third, his fee petition asserted compensation for work not actually
performed.
3. Making Knowing False Statements to a Tribunal – Rule 3.3(a)(1)
Rule 3.3(a)(1) of the D.C. Rules of Professional Conduct provides that “[a]
lawyer shall not knowingly . . . [m]ake a false statement of fact or law to a
tribunal.” This “is an extremely serious ethical violation.” In re Ukwu, 926 A.2d
1106, 1140-41 (D.C. 2007) (accepting Hearing Committee’s finding that
respondent had violated Rule 3.3(a)(1) where respondent misrepresented that his
client “had mistakenly mailed” a necessary document to the wrong venue “when in
fact she credibly testified that she had delivered the [document] to his office and he
had assured her that it would be timely filed”) (citation omitted). For example, in
Cleaver-Bascombe I, we held that submitting a voucher for compensation for work
the Respondent knew she had not performed was a Rule 3.3(a)(1) violation. See
892 A.2d at 403-04.
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The Board’s findings of fact regarding Rule 3.3(a)(1) were that Johnson
submitted a fee petition based on false assertions. There is substantial evidence of
these factual findings. We reference the factual findings above regarding Rule
1.5(a). Reviewing the Board’s legal conclusion de novo, we hold that those factual
findings rise to the level of violating Rule 3.3(a)(1) because Johnson submitted an
inflated fee petition for work that he knew that he had not performed.
4. Dishonesty, Fraud, Deceit, and Misrepresentation – Rule 8.4(c)
Rule 8.4(c) of the D.C. Rules of Professional Conduct provides that “[i]t is
professional misconduct for a lawyer to . . . [e]ngage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.”
This court has stated that dishonesty, fraud, deceit, and
misrepresentation are four different violations, that may
require different quantums of proof. Hence, while an
intent to defraud or deceive may be required for a finding
of fraud, dishonesty may result from conduct evincing a
lack of honesty, probity or integrity in principle; a lack of
fairness and straightforwardness. Thus, what may not
legally be characterized as an act of fraud, deceit or
misrepresentation may still evince dishonesty.
15
In re Romansky, 825 A.2d 311, 315 (D.C. 2003) (citations, quotation marks,
ellipses, and brackets omitted).
The Board’s findings of fact regarding Rule 8.4(c) were that Johnson
petitioned the D.C. government for fees in excess of the work he actually
performed on his client’s behalf, as well as for work that he had not actually
performed. Furthermore, it found that he relayed knowingly false information to
his client’s new counsel. Both of these examples, according to the Board, were
independent violations of Rule 8.4(c).
There is substantial evidence to support the Board’s factual findings above.
We reference our discussion above concerning Rule 1.5(a). Johnson did indeed
petition the D.C. government for fees in excess of work he actually performed.
Furthermore, he told H.G.’s new counsel, Mr. Levi, that he represented his client
from the beginning of his workers’ compensation claim, participated in pre-hearing
conferences with the ALJ, represented H.G. before the Compensation Review
Board (CRB), and that no check was issued until after the CRB approved his
client’s claim. In truth, each of these assertions was false. Moreover, Johnson
often failed to respond directly to Mr. Levi’s questions and requests for documents
that were necessary to continue the representation. For example, Mr. Levi asked
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Johnson whether he had taken a fee of one-third of the check for $58,050.63
received in 2014, to which Johnson responded that he never took a thirty-five
percent fee. His communications with new counsel are too long to recount in more
detail than this brief example.
Reviewing the Board’s legal conclusions de novo, we hold that they
constitute a violation of Rule 8.4(c). First, submitting a patently false fee petition
implies an intent to deceive the D.C. government. At the very least, it evinces a
lack of honesty. Second, Johnson’s characterization of his representation of H.G.
to Mr. Levi was dishonest. Third, his responses to Mr. Levi’s questions were the
opposite of fair and straightforward. Any of these would violate Rule 8.4(c), and
together they paint a picture of flagrant dishonesty.
5. Knowing Failure to Respond and to Disclose a Fact Necessary to
Correct a Misapprehension – Rule 8.1(b)
Rule 8.1(b) of the D.C. Rules of Professional Conduct provides that “a
lawyer . . . in connection with a disciplinary matter[] shall not . . . [f]ail to disclose
a fact necessary to correct a misapprehension known by the lawyer . . . to have
arisen in the matter, or knowingly fail to respond reasonably to a lawful demand
for information from [a] . . . disciplinary authority.”
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The Board’s factual findings regarding Rule 8.1(b) were that Johnson made
evasive and dishonest statements during the disciplinary proceedings. We find that
there is substantial evidence of a Rule 8.1(b) violation.
The ALJ’s letter referring Johnson to the Disciplinary Counsel incorrectly
stated that Johnson had taken a $20,350.21 (thirty-five percent) fee. When
Disciplinary Counsel sought Johnson’s answer to this claim by the ALJ, he denied
taking a fee of $20,350.21, without disclosing that he had, however, taken a fee of
$19,350.21, an amount in excess of the amount allowed under the D.C. Code. His
failure to disclose that information, which was necessary to remedy a
misapprehension by Disciplinary Counsel that he had not taken any fee at all, was
dishonest and violated Rule 8.1(b) by knowingly failing to disclose a fact
necessary to correct a misapprehension known by the lawyer to have arisen in the
matter.
6. Conduct Seriously Interfering with the Administration of Justice – Rule
8.4(d)
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Rule 8.4(d) of the D.C. rules of Professional Conduct provides that “[i]t is
professional misconduct for a lawyer to . . . [e]ngage in conduct that seriously
interferes with the administration of justice.”
To establish a violation of Rule 8.4(d), Bar Counsel must
prove by clear and convincing evidence that (1) the
attorney either took improper action or failed to take
action when [he or] she should have acted; (2) the
conduct involved bears directly on a case in the judicial
process with respect to an identifiable case or tribunal;
and (3) the conduct taints the judicial process in more
than a de minimis way, meaning that it must at least
potentially impact upon the process to a serious and
adverse degree.
In re Hallmark, 831 A.2d 366, 374-75 (D.C. 2003) (citation omitted) (rejecting the
Board’s conclusion that the late filing of an obviously deficient voucher violated
Rule 8.4(d) because it was the result of negligence instead of fraud). Conduct may
be improper if it “violates a specific statute, court rule or procedure, or other
disciplinary rule.” In re Hopkins, 677 A.2d 55, 61 (D.C. 1996).
The Board’s findings of fact regarding Rule 8.4(d) were that Johnson
mishandled H.G.’s workers’ compensation claim, which resulted in wasted time
and added expense for the former client, as well as added administrative burden on
the ALJ. It concluded that, taken together, this constituted a violation of Rule
8.4(d).
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There is substantial evidence to support the Board’s factual findings. We
reference the discussions above regarding the failure to disclose the D.C. Code
provision restricting attorney’s fees in workers’ compensation cases, de minimis
efforts on his former client’s behalf, and evasiveness towards new counsel, which
all indicate a mishandling of H.G.’s case. As discussed, this conduct violated D.C.
Code and D.C. Rules of Professional Conduct. Therefore, it was improper. It bore
directly on an identifiable case (H.G.’s workers’ compensation claim). It adversely
impacted that proceeding in more than a de minimis way in that he took client
funds, submitted a dishonest fee petition, and clogged the channels of justice by
submitting a frivolous appeal of a non-final and non-appealable order – all of
which necessitated extensive judicial efforts to sort out and decide, both before the
ALJ and the judges on this court. Therefore, we adopt the Board’s legal
conclusion that Johnson’s conduct violated Rule 8.4(d).
B. Respondent’s Failure to Present Meaningful Exceptions to the Board’s
Report and Recommendation
“The burden of proving disciplinary charges rests with Bar Counsel, and the
Board’s factual findings must be supported by clear and convincing evidence.” In
re Szymkowicz, 124 A.3d 1078, 1083-84 (D.C. 2015) (citation, ellipses, and
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brackets omitted). However, as noted above, we must accept the Board’s findings
of fact unless unsupported by substantial evidence. Cleaver-Bascombe I, 892 A.2d
at 401-02.
We conclude that Johnson’s exceptions to the Board’s Report and
Recommendation do not overcome the presumption that we accept findings and
conclusions supported by substantial evidence. Johnson argues that, in essence, 1)
the Board confused Johnson (Johnnie L.) with another attorney (Johnnie C.) when
it initially and erroneously identified Johnson as Johnnie C. Johnson, 2) his fee
petition submitted after taking payment from H.G. was meant to reimburse H.G.
for the fees he had already taken, 3) the Committee violated his constitutional right
by requiring him to testify at a hearing in which he represented himself, and 4)
H.G. had the constitutional right to give him money, regardless of where the
money came from.
1. Misidentified person
Johnson argues that he was misidentified by the Office of Disciplinary
Counsel on various occasions. He states that his name, age, physical description,
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and year of admission to practice in D.C. were all misidentified 1 and that this
evidence shows that the Office of Disciplinary Counsel and the ALJ, Fred D.
Carney Jr., combined and conspired to target him. Johnson contends that Carney
targeted him because he had various workers’ compensation hearings before him
that were later reversed by the Office of Workers Compensation Appeals Board.
Johnson also contends that Carney was the one who made the “erroneous
allegation without any support” that he took money from his client.
Despite what Johnson states, there is no evidence that the wrong attorney
was investigated. 2 By the time of the hearing on August 7, 2017, he was correctly
identified. Furthermore, Johnson admitted that he acted as counsel on behalf of
H.G. in his workers’ compensation case and engaged in the activities and
communications reflected in the record of the case. Therefore, his argument
provides no basis to overturn the Committee’s and the Board’s findings or
conclusions.
1
Johnson claims that he was willfully misidentified as Johnnie C. Johnson
III; as having been admitted to the practice of law in D.C. in 1996; and as being a
Black male, age 59, weighing 195 pounds, with no glasses and red hair.
2
At the pre-hearing conference on June 9, 2017, Disciplinary Counsel
apologized for the typo in the petition and Specification of Charges and agreed to
re-serve Johnson. Counsel did mention that despite the typo, Johnson was the
attorney they investigated and was involved in the representation of H.G.
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2. Fee petition
Johnson argues that his fee petition submitted after taking payment from his
former client was meant to reimburse H.G. for the fees he had already taken. He
asserts that the Office of Disciplinary Counsel colluded with Mr. Levi to order
H.G. to not accept payment from this fee petition in order to charge Johnson with
these rule violations, and that this was a “strategic decision that caused [H.G.] his
financial loss.”
However, Johnson points to no evidence in the record to support his
argument. The Committee heard his argument at the hearing and they were able to
make credibility determinations (including accepting or rejecting his argument) at
that time based on the record and his testimony. While Johnson does not bear the
initial burden to disprove rule violations that are charged, once Disciplinary
Counsel has presented substantial evidence, we are bound to adopt those findings
unless Johnson can demonstrate why that evidence is not in fact reliable or does
not actually prove those violations. Johnson has failed to demonstrate why any of
the evidence relied upon by the Committee was not reliable.
3. Constitutional arguments
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Johnson argues that the Committee violated his constitutional right by
requiring him to testify at a hearing in which he represented himself in order to
prove their case, and his former client had the constitutional right to give him
money, regardless of where the money came from. However, Johnson’s arguments
are vague one-line conclusory assertions. He has failed to cite authority in this
jurisdiction or any other to support his arguments. Therefore, we consider his
arguments waived since undeveloped legal arguments will not be entertained on
appeal. See D.C. App. R. 28(a)(10) (the brief must contain an argument
“containing the appellant’s contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant relies”); see also
Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008) (“[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.”).
III. Necessity and Consistency of Disbarment
“In determining the appropriate order, the 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
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unwarranted.” D.C. Bar R. XI, § 9(h)(1). “The Board’s recommended sanction
comes to us with a strong presumption in favor of its imposition. If the Board’s
recommended sanction falls within a wide range of acceptable outcomes, it will be
adopted and imposed.” In re McClure, 144 A.3d 570, 572 (D.C. 2016) (citation,
quotation marks, and brackets omitted). Despite this strong presumption, we also
consider the seriousness of respondent’s conduct, prejudice to his client, whether
the conduct involved dishonesty, other rules violations, previous disciplinary
history, respondent’s remorsefulness, and other mitigating circumstances. See In
re Pelkey, 962 A.2d 268, 281 (D.C. 2008). The Board recommended two
sanctions: disbarment and, as a condition of possible reinstitution, restitution of
the full amount taken paid to the Clients’ Security Fund.
“We reserve the sanction of disbarment for the most extreme attorney
misconduct, and have done so in two types of dishonesty cases – (1) intentional or
reckless misappropriation where the presumptive sanction is disbarment, and (2)
dishonesty of the flagrant kind.” In re Howes, 39 A.3d 1, 15 (D.C. 2012) (citation
and quotation marks omitted). “Further, disbarment has been imposed as a
sanction in cases where misconduct was subsequently concealed by deceit or
fraud.” Id. Indeed, “[t]he attempted cover-up often exceeds the initial
misconduct.” In re Cleaver-Bascombe II, 986 A.2d 1191, 1200 (D.C. 2010). We
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hold that Johnson’s conduct involved flagrant dishonesty, and, therefore, it falls
within the range of cases where we have imposed disbarment in the past.
Moreover, we conclude that Johnson’s behavior before Disciplinary Counsel, the
committee, the Board, and this court, demonstrate an effort to conceal his
wrongdoing. Therefore, there is ample justification for disbarment in this case.
We consider the aggravating and mitigating factors mentioned above to
determine whether disbarment is warranted. First, Johnson’s behavior involved
dishonesty, which is “antithetical to the practice of law” and “cannot be condoned
by those charged with protecting the public from unscrupulous conduct by
lawyers.” In re Daniel, 11 A.3d 291, 300 (D.C. 2011) (citation omitted). Second,
not only did Johnson take money belonging to his client to which he was not
legally entitled, his handling of the case also prejudiced H.G.’s workers’
compensation claim by requiring him to start over with new counsel to
successfully litigate the matter. See, e.g., In re Baber, 106 A.3d 1072, 1075 (D.C.
2015) (holding that respondent had prejudiced his client by withdrawing and
causing her “to restart the probate process with a new attorney and post a . . .
probate bond”). Third, numerous violations, “albeit arising essentially in a single
matter, require a substantial sanction.” In re Silva, 29 A.3d 924, 943 (D.C. 2011)
(holding thus in light of respondent’s eight violations in connection with the same
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matter). In this case, Johnson has not only violated the rule against dishonesty, but
a host of other ones as explained above. Fourth, respondent shows no remorse,
which weighs “significantly in favor of disbarment.” In re Baber, 106 A.3d at
1077 (observing that “the record support[ed] the Board’s determination that
[respondent] showed no remorse during the disciplinary process, but instead
repeated his false accusations against [his client] and continued to falsely blame
[his client]”). Finally, and to Johnson’s credit, we are unaware of any history of
rules violations; however, in light of all the other factors, the absence of any
evidence before us indicating a history of violations does not sufficiently mitigate
against our decision to impose disbarment.
“When imposing discipline, the Court . . . may require an attorney to make
restitution either to persons financially injured by the attorney’s conduct or to the
Clients’ Security Trust Fund (see Rule XII), or both, as a condition . . . of
reinstatement.” D.C. Bar R. XI, § 3(b). Restitution as a condition of reinstatement
is consistent with prior disbarment cases involving dishonesty and attorneys taking
money to which they are not entitled. E.g., In re Omwenga, 49 A.3d 1235, 1244-
45 (D.C. 2012) (imposing restitution as condition of reinstatement where
“Respondent was repeatedly dishonest with his clients, courts, Bar Counsel and the
Hearing Committee,” neglected client matters, and misappropriate $550); In re
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Stewart, 953 A.2d 1034, 1035-36 (D.C. 2008) (imposing restitution as a condition
of reinstatement where respondent used retainer fees for personal use before
performing any work on clients’ behalf); In re Viehe, 762 A.2d 542, 543-44 (D.C.
2000) (imposing restitution as a condition of reinstatement where respondent used
blank checks provided by his client for use in a real-estate transaction to give
himself loans without his client’s knowledge). Therefore, we concur with the
Board’s recommendation that Johnson be required to pay full restitution of
$19,350.21 to the Clients’ Security Fund as a condition of reinstatement. Though
Johnson performed some work on H.G.’s behalf, the entirety of the fee that he
received was based on dishonesty and was illegally obtained; thus, Johnson should
not be permitted to profit from his misconduct.
IV. Conclusion
Because the Board’s factual findings are supported by substantial evidence,
we are required to adopt them. Reviewing the Board’s legal conclusions de novo,
we conclude that they are consistent with our precedent. Because disbarment for
flagrant dishonesty is consistent with our prior decisions, and because it is
warranted in Johnson’s case, we adopt the Board’s recommendation. Therefore, it
is
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ORDERED that Johnnie L. Johnson, III is disbarred from the practice of law
in the District of Columbia, and that a condition of reinstatement is full restitution
of $19,350.21 to the Clients’ Security Fund.