In re Marks, Sr. ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-BG-241
IN RE ISAAC H. MARKS, SR., RESPONDENT.
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 411706)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN 059-18)
(Decided June 24, 2021)
Before THOMPSON and EASTERLY, Associate Judges, and NEBEKER, Senior
Judge.
PER CURIAM: The Ad Hoc Hearing Committee issued its Report concluding
that Respondent negligently misappropriated entrusted funds, made six intentionally
dishonest statements and representations in court proceedings, failed to protect his
client’s interests, and undertook actions that seriously interfered with the
administration of justice 1 and recommending that Respondent be suspended for
1
District of Columbia Rules of Professional Conduct: Rule 1.1 (a) (failure to
competently represent a client; Rules 1.3(a), (b)(1) and (c) (failure to zealously
represent client, seek the client’s lawful objectives and act promptly); Rule 1.15(a),
2
eighteen months with reinstatement conditioned on completing continuing legal
education 2 and a showing of fitness. Specifically, the Hearing Committee found
that Respondent was retained by McCloud to create a revocable trust naming
McCloud as the beneficiary and trustee, and upon McCloud’s death naming her
granddaughter, who was cognitively impaired, as the beneficiary and Respondent as
the successor trustee. Additionally, upon McCloud’s death Respondent was to
marshal all trust assets (including the granddaughter’s social security payments that
were sent to the trust account and loan payments for loans made by McCloud),
promptly sell the family home, create a special needs trust for the granddaughter,
and identify a safe-living environment, preferably in an assisted-living facility, for
the granddaughter. After McCloud’s death, Respondent took control of the trust
assets and filed a petition to appoint a guardian for the granddaughter. However,
Respondent conceded that he erroneously withdrew funds from the trust account for
non-trust purposes and failed to promptly repay the funds. Furthermore, once the
guardianship was approved, Respondent failed to respond to requests for
commingling and misappropriation of client funds and failure to keep proper
records); Rule 1.15(c) (failure to notify and deliver client funds); Rule 8.4(c),
engaging in conduct involving dishonesty); and Rule 8(d) (serious interference with
the administration of justice).
2
The Committee recommended a total of nine hours with six hours devoted
to trust account management and three hours to legal ethics.
3
information on the trust made by the attorney and guardian, resulting in the court
directing Respondent’s deposition. Further, in response to motions filed for an
accounting and later for removal of Respondent as the trustee, Respondent filed
responses that included false or misleading statements and made false or misleading
statement during a hearing. Those actions formed the basis for the Rule 8(c)
violation.
Prior to his removal as trustee, Respondent failed to sell or preserve the real
estate, timely file real estate taxes, forward to the guardian the ward’s social security
payments that were previously deposited in the trust’s bank account, create a special
needs trust, and pursue repayments of loans held by the trust. The Committee
concluded that Respondent’s misappropriation was the result of negligence and a
violation of Rule 1.15(a). The Committee also concluded that Respondent’s failure
to protect his client’s interests violated numerous Rules of Professional Conduct.
The majority of the Committee concluded that Disciplinary Counsel had submitted
sufficient evidence to support a finding that Respondent made six intentionally
dishonest statements in violation of Rule 8(c).
4
Finally, the majority of the Committee determined that the requirements for
imposing a fitness condition had been satisfied. However, a dissenting opinion
argued that the evidence was insufficient to support a Rule 8(c) violation for each of
the six statements, concluding that the evidence supported the finding only for a
single statement and that the requirements for imposing a fitness condition had not
been met, and recommending the imposition of a one-year suspension with
reinstatement contingent on the completion of the CLE requirement.
The Board of Professional Responsibility adopted the majority of the
Committee’s findings but concluded that the intent necessary to support a Rule 8(c)
violation had been established as to only two of Respondent’s statements. The Board
rejected the recommendation to impose a fitness requirement, concluding that the
imposition of the legal education condition would ensure that similar violations
would not occur in the future. The Board recommended a one-year suspension with
a CLE condition.
Respondent filed a statement that he does not oppose the Board’s Report and
Recommendation, and no exceptions were filed by Disciplinary Counsel. Under
D.C. Bar R. XI, § 9(h)(2), “if no exceptions are filed to the Board’s report, the [c]ourt
5
will enter an order imposing the discipline recommended by the Board upon the
expiration of the time permitted for filing exceptions.” See also In re Viehe, 762
A.2d 542, 543 (D.C. 2000) (“When . . . there are no exceptions to the Board’s report
and recommendation, our deferential standard of review becomes even more
deferential.”). We are satisfied that the record supports the Board’s findings and
conclusions and that the Board’s recommended sanction of a one-year suspension
with conditions for reinstatement falls within the range of discipline imposed for
similar misconduct.3 Therefore, we accept the recommendation that respondent be
suspended for one-year and that reinstatement be contingent on the completion of
six hours of approved CLE on trust account management and three hours on legal
ethics.
Accordingly, it is
ORDERED that respondent Isaac H. Marks, Sr., is hereby suspended for a
period of one-year and that his reinstatement is contingent on his completion of six
hours of CLE on trust account management and three hours on legal ethics.
3
See, e.g., In re Soninen, 853 A.2d 712, 715 (D.C. 2004) (six-month
suspension for false statements and serious interference with the administration of
justice); In re Fair, 780 A. 26 1106, 1114 (D.C. 2001) (six-month suspension is the
norm for negligent misappropriation of entrusted funds).
6
Respondent’s attention is directed to the requirements of D.C. Bar. R. IX § 14 and
their effect on eligibility for reinstatement. See D.C. Bar. R. IX § 16(c).