In re Andre P. Barber ( 2015 )

District of Columbia
Court of Appeals
No. 13-BG-1501
IN RE: ANDRE P. BARBER,
Respondent.
Bar Registration No. 466138 BDN: 7-06, et al.
BEFORE: Fisher and Beckwith, Associate Judges, and Nebeker, Senior Judge.
ORDER
On consideration of Bar Counsel‟s petition for rehearing by the division, respondent‟s
motion to exceed the page limit, and respondent‟s lodged petition for rehearing by the
division, it is
ORDERED that respondent‟s motion for leave to exceed the page limit is granted and
the Clerk shall file the lodged petition for rehearing by the division. It is
FURTHER ORDERED that respondent‟s petition for rehearing is denied. It is
FURTHER ORDERED that Bar Counsel‟s petition for rehearing is granted and the
opinion issued by this division on October 8, 2015, is hereby vacated and the division shall
issue a new opinion forthwith. See D.C. App. Internal Operating Procedure Part XI (I).
PER CURIAM
Copies to:
Andre P. Barber Wallace E. Shipp, Jr., Esquire
1005 Crestline Drive Bar Counsel, Office of Bar Counsel
Dothan, AL 36301 515 5th Street, NW, Suite 117
Washington, DC 20001
Theodore D. Frank, Esquire
Chair, Board on Professional Responsibility
430 E Street, NW, Suite 138
Washington, DC 20001
emb
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-BG-1501
IN RE ANDRE P. BARBER, RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 466138)
On Report and Recommendation of
the Board on Professional Responsibility
(BDN-7-06)
(Argued October 2, 2014 Decided* November 12, 2015)
Andre P. Barber, pro se.
Julia L. Porter, Senior Assistant Bar Counsel, with whom Wallace E. Shipp,
Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on
the brief, for the Office of Bar Counsel.
Before FISHER and BECKWITH, Associate Judges, and NEBEKER, Senior
Judge.
PER CURIAM: Respondent Andre Barber opposes the Board on Professional
Responsibility‟s unanimous recommendation that he be disbarred from the practice
*
This case was originally decided on October 8, 2015. The division has
granted Bar Counsel‟s petition for rehearing and substituted the present opinion in
place of the original opinion. This opinion reflects changes to the discussion
regarding the need for a bill of particulars.
2
of law in the District of Columbia. Mr. Barber was found to have violated sixteen
Rules of Professional Conduct. We are not persuaded by Mr. Barber‟s arguments
on appeal, and we accept the Board‟s recommendation of disbarment.
This appeal involves three separate disciplinary matters that were
consolidated after two Hearing Committees found several rule violations. In the
first matter, Mr. Barber was accused of violating Rule of Professional Conduct 3.1
(asserting and pursuing frivolous claims) and Rule 8.4 (d) (seriously interfering
with the administration of justice) for his actions in pro se litigation with his
residential landlord. The Board found that Mr. Barber filed several “groundless
and repetitive pleadings and appeals, which were intended to increase his
opponent‟s fees, and had that effect.” When those appeals reached our court, we
called his claims “frivolous” and stated that “[w]e do not believe that appellant
reasonably could have entertained the faintest hope of prevailing on the merits of
this appeal” and that “the trial court characterized the argument he presents on
appeal as „crazy.‟” Mr. Barber was subsequently sanctioned by the trial court, but
he never paid the roughly $87,000 of legal fees incurred by his landlord.
In the second matter, Mr. Barber was accused of violating fourteen Rules of
Professional Conduct—thirteen that were sustained by the Board—during his
representation of three clients in litigation against their landlord, Tenacity Group,
3
LLC. Several charges arose from statements Mr. Barber made and actions he took
while attempting to collect his legal fees from his clients and from Tenacity
directly. These included misrepresentations to an arbitrator that the fee was not in
fact contingent; statements breaching the settlement agreement, which resulted in
his clients losing their valuable settlement; threats to report counsel for Tenacity to
the bar if counsel did not pay him; and “[l]aunch[ing] a [l]itigation [b]arrage
[a]gainst Tenacity” that one trial judge called “highly disturbing” and “baseless.”
In addition, Mr. Barber was found to have failed to communicate with a client
regarding the client‟s appeal and to have used an improper trade name.
The third matter against Mr. Barber consisted of allegations of misconduct
during Bar Counsel‟s investigation—primarily false statements. Mr. Barber was
also cited for his “palpable disdain” and failure to adhere to Hearing Committee
orders during the formal disciplinary proceedings.
I.
Together, the two Hearing Committees found that Mr. Barber had
committed all seventeen of the rule violations of which he had been accused, and
4
the Board adopted these findings except for the alleged violation of Rule 1.4 (b).
Mr. Barber now challenges these findings on myriad grounds.1
First, Mr. Barber challenges a number of his false statement violations as
lacking substantial evidence. See In re Robinson, 74 A.3d 688, 694 (D.C. 2013)
(Court of Appeals “must accept the factual findings of the Hearing Committee,
unless they are not supported by substantial evidence in the record”). As to two
charges, Mr. Barber‟s argument relies on his assertion that witnesses gave false
testimony during the hearing. But “[t]his court is in no position to overturn [the
Committee‟s] factual findings when . . . the Committee observed the witnesses,
questioned them and assessed their truthfulness.”2 In re Kanu, 5 A.3d 1, 11 (D.C.
2010) (internal quotation marks omitted). As to other charges, Mr. Barber‟s
arguments—even if true—are inconsequential.3 We are satisfied that there is
1
The Board noted that Mr. Barber‟s “litany of arguments [is] reminiscent of
the frivolous claims and tactics that resulted in the charges against him.”
2
Nor do we have any occasion to consider Mr. Barber‟s allegation that Bar
Counsel “is still knowingly making false arguments in its brief” on appeal. The
two Hearing Committees found the facts as they did, and the Board affirmed them
as being supported by substantial evidence. We cannot upset that determination by
second-guessing the factfinder‟s credibility assessment.
3
We do reject Bar Counsel‟s assertion that “[a]ll the factual findings that
Respondent challenges are based on the Committees‟ credibility determinations.”
For example, Mr. Barber‟s attempt to prove that he “never stated that the Court of
Appeals „directed him to file a motion to correct errors‟” by pointing to record
evidence has no issues of credibility intertwined.
5
substantial evidence that Mr. Barber made several material misrepresentations in
several different contexts and, even if he cannot be properly found to have made
one or two particular false statements, there is substantial evidence that he violated
each of the rules he has been accused of violating.
Mr. Barber claims that his Fifth Amendment right against self-incrimination
was violated when the Hearing Committee called him as a witness. Unlike in a
criminal trial, however, Mr. Barber did not have a Fifth Amendment right to
decline to take the witness stand. He instead was free to invoke his Fifth
Amendment right on a question-by-question basis if, in responding to a question,
Mr. Barber would be providing evidence that could be used to convict him of a
crime. See Miss. State Bar v. Attorney-Respondent, 367 So. 2d 179, 185 (Miss.
1979); In re Baun, 232 N.W.2d 621, 624-25 (Mich. 1975); cf. Littlejohn v. United
States, 705 A.2d 1077, 1083 (D.C. 1997) (noting that the “absolute right not to
testify” is limited to criminal defendants).4
4
Mr. Barber also argues that the Board did not have authority to order him
to be a witness, but Board Rule 11.2 permits the chair to “question the participant
for the purpose of clarifying matters raised at the hearing.” Mr. Barber‟s argument
that the rule cannot be used to “transform an adversarial hearing into an
inquisition” is meritless given that, as just discussed, he was always free to invoke
his Fifth Amendment right in response to specific questions.
Nor can Mr. Barber fairly contend that Bar Counsel could not charge him
with lying based on testimony he was “compelled” to make. The Constitution
(continued…)
6
Mr. Barber further argues that the Specification contains charges regarding
the Barber v. Potomac Place Assocs. litigation beyond those alleged in the
Informal Admonition he rejected, a violation of Board Rule 6.4.5 This is because
the proposed Informal Admonition focuses exclusively on Mr. Barber‟s frivolous
appeal in this court in that case, while the Specification makes additional
allegations of rule violations stemming from Mr. Barber‟s conduct in Superior
Court in relation to that case. The Board concluded that these allegations were not
additional “charges” because they did not assert violations of different rules,
instead contending that “the Specification of Charges simply provided a more
comprehensive and detailed description of the facts supporting those charges [and
therefore] did not violate Board Rule 6.4.” Even assuming that the Board erred by
including what were really additional charges under the guise of a more complete
factual description, any error would be harmless. The record contains substantial
evidence that Mr. Barber violated both Rules 3.1 and 8.4 (d) during the Potomac
Place appeal, as we noted that his appeal was “frivolous.” That the Hearing
Committee might have inappropriately considered additional conduct that also
(…continued)
gives Mr. Barber the right to refuse to answer questions that may incriminate him.
In re Artis, 883 A.2d 85, 103 (D.C. 2005). It does not give him the right to lie.
United States v. Wong, 431 U.S. 174, 178 (1977).
5
Mr. Barber cites Board Rule 6.5, but presumably means Rule 6.4.
7
happened to violate Rules 3.1 and 8.4 (d) did not prejudice Mr. Barber. Unlike in a
criminal case, Mr. Barber did not receive multiple “convictions” for multiple
violations—the Board merely delineates which rules he violated and recommends
a sanction accordingly. There is no question that Mr. Barber violated Rules 3.1
and 8.4 (d) in conduct that was properly before the Board.
Mr. Barber next argues that he received insufficient notice of the charges
against him because the Specification was “nothing more than a „shotgun
pleading‟” that did not adequately explain which factual assertions were used to
justify which rule violations. Mr. Barber‟s claim, however, is not that a bill of
particulars was erroneously denied6—it is that his constitutional right to due
process was violated. We find no merit to this contention. Even assuming that the
Specification was in some way deficient, Bar Counsel, in its opposition to Mr.
Barber‟s motion to dismiss, identified the factual allegations in the Specification
that supported the particular rule violations of which Mr. Barber claimed to be
uncertain. Moreover, at the outset of the hearing, Bar Counsel briefly went
through each charge and explained which facts in particular supported each
6
We therefore need not decide what relief would be warranted from such a
determination on appeal.
8
charge.7 The Constitution requires nothing more. See In re Winstead, 69 A.3d
390, 397 (D.C. 2013) (holding that due process is satisfied when “the Specification
of Charges gave respondent notice of the specific rules she allegedly violated, as
well as notice of the conduct underlying the alleged violations”).
Mr. Barber‟s allegation that Bar Counsel violated due process by “coaching
an adverse witness” is likewise without merit. Mr. Barber cannot show that any
witness was improperly “coached.” We reject Mr. Barber‟s claim that it was
improper to allow a witness to refresh his recollection of a conversation in which
that witness participated. Cf. Hawthorne v. United States, 504 A.2d 580, 586 n.15
(D.C. 1986) (recognizing that Fed. R. Evid. 612, which allows for refreshing
recollection of a witness on the stand, “reflects long-standing District of Columbia
practice”).
Mr. Barber next argues that he did not have an “opportunity to respond” to
the allegations against him as required by various rules—specifically, that he did
not have the opportunity to respond in writing under Board Rule 2.8 and that he
did not have the opportunity that Bar Rule XI § 6 (a)(2) affords him to respond to
7
This occurred in response to the panel chair‟s request that Bar Counsel
“give us some preliminary guidance as to which of the events and situations that
you expect to prove will support, at least in part, the various alleged rule violations
in paragraph 168, so that we can be alert to that as we‟re hearing the evidence in
your attempts to prove these charges.”
9
the allegations. Mr. Barber had sufficient opportunity to respond to the allegations
in person before two separate Hearing Committees, he did in fact respond in
writing in an “Answer to the Specification of Charges” dated August 30, 2010, and
we have already concluded that Mr. Barber‟s due process rights were not violated.
Mr. Barber had all the opportunity to respond to which he was entitled.
We reject Mr. Barber‟s equal protection claim that he was unfairly targeted
by Bar Counsel, who refused to initiate a formal investigation against counsel for
Tenacity at Mr. Barber‟s behest. Even assuming that Bar Counsel needed a
“rational basis” for its decision not to prosecute Mr. Barber‟s complaint against
counsel for Tenacity, its conclusion that there was “„insufficient evidence‟ to
warrant a formal investigation” against counsel for Tenacity sufficiently explains
its actions.
We are also not convinced by Mr. Barber‟s argument that the Specification
of Charges did not comply with the oath requirement of D.C. Code § 11-2503 (b)
(2012 Repl.). Bar Counsel verified that “I do affirm that I verily believe the facts
stated in the Specification of Charges to be true.” As the Board correctly noted,
“This is the same oath, by the same person, that the Court of Appeals specifically
approved in In re Morrell, 684 A.2d 361, 365-67 (D.C. 1996).” Mr. Barber‟s
attempt to distinguish Morrell, claiming we “merely ruled that Bar Counsel‟s oath
10
need not be based on personal knowledge,” is unavailing. If the sworn statement
need not be based on personal knowledge, we are not persuaded that the oath
requires more “facts to support why Bar Counsel‟s belief should be deemed
reliable,” as Mr. Barber argues.
Mr. Barber argues that the Hearing Committee‟s failure to issue its report
within 120 days violated his right to due process and was prejudicial. The 120-day
rule is “directory, rather than mandatory,” however. Morrell, 684 A.2d at 370.
Mr. Barber‟s argument that the Hearing Committee erred by failing to entertain his
motions to dismiss is also without merit because, as the Hearing Committee noted,
a Hearing Committee is not authorized to rule on such a motion but must instead
include a recommended disposition in its report to the Board. In re Ontell, 593
A.2d 1038, 1040 (D.C. 1991); Board Rule 7.16 (a).
Finally, Mr. Barber argues that the sanction of disbarment was “procedurally
improper” and that Bar Counsel “may not argue for disbarment because it failed to
file exceptions to the Hearing Committee reports and neither Hearing Committee
recommended disbarment.” This argument is contrary to our case law. In In re
Foster, 699 A.2d 1110, 1112 (D.C. 1997), this Court adopted the Board‟s
recommendation of disbarment when two Hearing Committees had each
recommended lesser sanctions. Bar Counsel did not file any exceptions in that
11
case, either. Id. at 1110. The Board there noted that “[n]either of the committees
was aware of the proceedings heard by the other committee. Presumably, the
sanction recommendation would have been more severe had all of the matters been
heard by a single committee.” Id. at 1112. And the Board further explained that
[u]nder [this] Court‟s ruling in Matter of Thompson, 492
A.2d 866, 867 (D.C. 1985), where two or more
separately docketed matters are before the Board
involving the same respondent, the question as to
sanction should be: If all the matters were before the
Board simultaneously, what would be its
recommendation as to the appropriate discipline?
Id. The Board then recommended disbarment, and we accepted the
recommendation. Id. at 1110.
This is the proper procedure for the Board to follow when determining
sanctions in cases in which separate matters become consolidated. The Board‟s
recommendation of disbarment is thus not procedurally barred, and, for the reasons
set out in the Board‟s report, we hereby order Mr. Barber‟s disbarment from the
practice of law in the District of Columbia. For the purposes of seeking
reinstatement, the period of disbarment shall not be deemed to commence until Mr.
Barber files an affidavit that conforms to the requirements of D.C. Bar R. XI, § 14
(g).
So ordered.