In re Gregory L. Lattimer ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-BG-338
IN RE GREGORY L. LATTIMER, RESPONDENT.
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration Number 371926)
On Report and Recommendation
of the Board on Professional Responsibility
(Board Docket Numbers 11-BD-085 and 15-BD-070)
(BDN170-09, BDN319-09, BDN401-10, and BDN145-14)
(Argued November 4, 2019 Decided January 16, 2020)
Gregory L. Lattimer, pro se.
Hamilton P. Fox, III, Disciplinary Counsel, with whom Jennifer P. Lyman,
Senior Assistant Disciplinary Counsel, was on the brief, for the Office of
Disciplinary Counsel.
Before EASTERLY and MCLEESE, Associate Judges, and OKUN, Associate
Judge of the Superior Court of the District of Columbia. *
*
Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
2
PER CURIAM: In a report consolidating disciplinary cases heard by two
Hearing Committees, the Board on Professional Responsibility (the “Board”)
concluded that respondent, Gregory L. Lattimer, committed multiple violations of
the District of Columbia Rule of Professional Conduct 1.4(a) (communication with
client) in the course of representing two clients in the District of Columbia, as well
as violations of the Virginia Rules of Professional Conduct 1.1 (competence),
1.3(a) (diligence), and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or
misrepresentation), in the course of representing a third client in Virginia.1 The
Board recommended Mr. Lattimer be suspended for sixty days, with the
requirement that Mr. Lattimer pay restitution with interest to the family of one of
his clients and provide proof of payment prior to reinstatement. We agree with the
Board’s conclusions that Mr. Lattimer’s conduct violated the District of Columbia
and Virginia Rules and adopt the Board’s recommendation as to sanction, except
that we additionally impose a fitness requirement.
1
Mr. Lattimer is not barred in Virginia but was admitted to practice pro hac
vice in the United States District Court for the Eastern District of Virginia in
connection with the lawsuit he filed there. The Board applied the Virginia Rules
pursuant to District of Columbia Rule 8.5 and Local Civil Rule 83.1(I) of the
United States District Court for the Eastern District of Virginia.
3
I. Standard of Review
In a disciplinary case, Disciplinary Counsel must establish a rule violation
by clear and convincing evidence. In re Tun, 195 A.3d 65, 72 (D.C. 2018). This
court accepts the factual findings of the Board “if they are supported by substantial
evidence in the record.” 2 In re Howes, 52 A.3d 1, 12 (D.C. 2012); see also D.C.
Bar R. XI, § 9(h)(1). We review the Board’s conclusions of law de novo. In re
Saint-Louis, 147 A.3d 1135, 1147 (D.C. 2016).
II. Misconduct
A. District of Columbia Rule 1.4(a)
To comply with District of Columbia Rule 1.4(a), a lawyer must “keep a
client reasonably informed about the status of a matter and promptly comply with
2
The Board did not hold an evidentiary hearing in this case. It adopted all
of the findings of fact made by the two Hearing Committees and based its findings
of fact thereon, pursuant to Board Prof. Resp. R. 13.7 (“Review by the Board shall
be limited to the evidence presented to the Hearing Committee, except in
extraordinary circumstances determined by the Board.”). In his brief to this court,
Mr. Lattimer suggests that the Board should have held an evidentiary hearing, but
he did not argue to the Board that a hearing was warranted and we consider this
argument waived.
4
reasonable requests for information.” Comment two further provides that “[a]
client is entitled to whatever information the client wishes about all aspects of the
subject matter of the representation unless the client expressly consents not to have
certain information passed on” and that “[t]he lawyer must initiate and maintain
the consultative and decision-making process if the client does not do so and must
ensure that the ongoing process is thorough and complete.” Failing to return a
client’s calls or respond to their questions violates this rule. See In re Bernstein,
707 A.2d 371, 376 (D.C. 1998) (holding an attorney’s failure to return his client’s
telephone calls and promptly answer other requests for information violated Rule
1.4(a)); In re Dietz, 633 A.2d 850, 850 (D.C. 1993) (same). A failure to
communicate with a client when the client is incarcerated and thus has limited
access to the outside world is particularly concerning. See, e.g., In re Askew, 96
A.3d 52, 59 (D.C. 2014) (per curiam); see also In re Fitzgerald, 982 A.2d 743,
751–52 (D.C. 2009). Mr. Lattimer was charged with violating Rule 1.4(a) with
respect to two clients, Roderick Strange and Toby Cooper.
5
1. Roderick Strange
The Hearing Committee, and the Board in turn, made the following findings
with respect to Mr. Lattimer’s representation of Roderick Strange: Mr. Strange’s
mother retained Mr. Lattimer to represent her son in his criminal appeal in March
2008. Mr. Lattimer met with Mr. Strange just once in person, at the D.C. Jail, in
March. Thereafter, Mr. Strange was transferred to a federal prison in South
Carolina. While he was in transit and after he arrived at his destination, Mr.
Strange made a number of collect calls to Mr. Lattimer’s office. None of his calls
was accepted; meanwhile, Mr. Lattimer did not call, write, or visit Mr. Strange.
After six months of no contact, Mr. Strange paid for a long distance call to Mr.
Lattimer’s office in October 2008. A month later, Mr. Lattimer sent Mr. Strange a
letter informing him that he had an “outstanding balance” that would need to be
paid if Mr. Strange still wanted him to file a brief. That was their final
communication. Mr. Lattimer never entered an appearance in the case and never
filed any documents with the Court of Appeals, see D.C. App. R. 42(a), so an
attorney appointed by the court, Ian Williams, ultimately litigated Mr. Strange’s
appeal. 3
3
Because Mr. Lattimer never entered an appearance with this court, this
court would not have sent any notices to him regarding the state of the record or
(continued…)
6
Regarding the actual extent of his contact with Mr. Strange, Mr. Lattimer
vaguely asserts that “[t]he facts about communication are at odds,” and refers us to
his exceptions to the Hearing Committee Report, which he “incorporate[s] as if
fully set forth” in his brief. In an appeal to this court, it is Mr. Lattimer’s
obligation to set forth his argument in his brief, and it is not enough for him to
“perfunctor[ily]” “advert[]” to issues he raised in a different forum at an earlier
stage of the litigation. Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008)
(internal quotation marks omitted). In any event, we reiterate that in disciplinary
cases, factfinding and, in particular, credibility determinations are delegated to the
Hearing Committee and, if it has taken additional evidence, to the Board. See In re
Asher, 772 A.2d 1161, 1172 (D.C. 2001). Our task is to confirm that these
findings are supported by substantial evidence. In re Howes, 52 A.3d at 12. The
record submitted to the Hearing Committee in this case provides the requisite
foundation for the finding Mr. Lattimer had no contact with Mr. Strange for more
than six months, despite Mr. Strange’s numerous attempts to contact Mr. Lattimer
(…continued)
the briefing schedule. Although Mr. Lattimer testified that he checked on the
status of Mr. Strange’s appeal with the Superior Court “Appeals Coordinator’s
Office” in May or June 2008, there is no evidence in the record that Mr. Lattimer
ever had contact with the Court of Appeals about Mr. Strange’s case.
7
to learn the status of his case.4 Mr. Lattimer’s assertion that “[t]here was no
evidence in the record indicating that information was sought and it was not
provided” is unsupported by the record. 5
Mr. Lattimer argues in the alternative that he had no legal obligation under
Rule 1.4(a) to keep Mr. Strange reasonably informed or to comply with reasonable
requests for information because Mr. Strange’s testimony established that “he had
no expectation of receiving information from [Mr. Lattimer].” Mr. Lattimer
4
Mr. Lattimer argues that Disciplinary Counsel had no evidence that Mr.
Strange sent any letters or e-mails, or left any voicemails to which Mr. Lattimer
failed to respond, and that the only records it had were “collect calls that were not
accepted.” The suggestion that Mr. Strange should have been doing more than
making collect calls to Mr. Lattimer is disconcerting from an attorney who touts
his extensive experience in criminal and appellate representation. Mr. Strange was
indigent, as evidenced by the fact that this court appointed him counsel. Calling
collect is commonplace for incarcerated individuals with limited resources.
Particularly where an incarcerated client has not heard from their lawyer, as Mr.
Strange had not, it seems perfectly appropriate that the client would try to call
counsel collect to make contact (and would not be able to leave messages if his
calls were declined). As for writing emails or letters, there are a number of
reasons, among them privacy concerns, illiteracy, and access (to a computer or the
internet), that an incarcerated client might not use these alternate modes of
communication. Finally, it bears repeating that the onus was on Mr. Lattimer, not
Mr. Strange, to “initiate and maintain” contact per District of Columbia Rule 1.4,
comment 2.
5
To the extent Mr. Lattimer seeks to disregard Mr. Strange’s testimony to
the Hearing Committee and rely instead on his own testimony, his argument fails
because, as to the facts detailed above, the Hearing Committee credited Mr.
Strange and did not credit Mr. Lattimer.
8
asserts that Mr. Strange testified that he made a “decision . . . in the summer of
2008” and “considered Mr. Williams his attorney and not [Mr. Lattimer].” But this
puts words in Mr. Strange’s mouth that he did not say. Instead, Mr. Strange
explained that he reached out to Mr. Williams because he and his family had been
unable to make contact with Mr. Lattimer and, beginning in late summer, Mr.
Strange “considered” Mr. Williams to be his lawyer because “he was the one that
was doing everything” in Mr. Strange’s case. Although Mr. Strange acknowledged
he was looking to Mr. Williams for assistance, he never testified that he “decided”
Mr. Lattimer, the attorney his mother had retained for him in March, was not his
lawyer. To the contrary, the fact that Mr. Strange paid for a long distance call to
Mr. Lattimer from prison in October 2008 indicates that Mr. Strange was still
looking to Mr. Lattimer to provide him with information about his appeal up until
that time. 6
6
The fact that Mr. Lattimer sent Mr. Strange a letter a month later
requesting the balance of his promised fee and offering to file a brief on Mr.
Strange’s behalf is likewise some indication that, as late as November 2008, Mr.
Lattimer himself did not understand Mr. Strange to have “decided” that he was not
Mr. Strange’s lawyer.
9
We conclude that Mr. Lattimer’s failure to communicate with Mr. Strange
for the six months after he was retained violated District of Columbia Rule 1.4(a).
See In re Askew, 96 A.3d at 59; In re Fitzgerald, 982 A.2d at 751–52.
2. Toby Cooper
The Hearing Committee, and the Board in turn, made the following findings
regarding Mr. Lattimer’s representation of Toby Cooper: Ms. Cooper retained Mr.
Lattimer on June 18, 2010, to represent her in a federal civil rights lawsuit. Over
the next three months (until she terminated his representation), Ms. Cooper had
only limited contact with Mr. Lattimer, even though he had led her to believe her
case needed to move quickly and even though she reached out to him in different
ways, repeatedly. During the month of July, Ms. Cooper sent Mr. Lattimer two
packages of case-related documents in the mail, 7 and then, to get updates on her
case, emailed him four times and called him seven times. Mr. Lattimer never
called her back. He sent Ms. Cooper one email in early July informing her he had
not yet filed a complaint. Later that month he sent Ms. Cooper two more emails—
apparently prompted by a concern that Ms. Cooper was criticizing him to
7
The second package was a duplicate of the first, but Ms. Cooper resent it
when Mr. Lattimer did not timely confirm receipt.
10
colleagues for being non-communicative—in which he defended his approach to
client contact. Ms. Cooper again attempted to connect with Mr. Lattimer in
August via email and in September via phone, but without success. On September
22, 2010, Ms. Cooper emailed Mr. Lattimer to discharge him as her attorney and to
request a refund of her retainer.
Mr. Lattimer disputes Ms. Cooper’s narrative of her many unsuccessful
efforts to connect with him, again effectively asking us to reassess the Hearing
Committee’s credibility determinations.8 Even if we could, but see supra page 6,
we would decline to do so. The Hearing Committee heard firsthand from Ms.
Cooper, whose testimony was corroborated by phone logs and printouts of the
emails, which were entered into the record and never challenged by Mr. Lattimer.
In short, there was ample, unimpeached evidence to support the Hearing
8
Mr. Lattimer asserts:
[Ms. Cooper] did not leave a message, if she did call, and
she did not email the Respondent in order to
communicate with him as she did when she wanted to
discharge him. Had Ms. Cooper called and the
Respondent been in the office, her call would have been
taken; had she called and left a message, her call would
have been returned; had she sent an email or letter it
would have been responded to.
11
Committee’s determination that Mr. Lattimer failed to adequately communicate
with Ms. Cooper.
Mr. Lattimer also argues that he had no obligation under the Rules to contact
Ms. Cooper when “he had no update on her case for her,” and that the Rules
required him to communicate with Ms. Cooper only when it was “necessary,
required, and warranted.” We cannot agree. Ignoring or electing not to respond to
Ms. Cooper when she reached out to learn the status of her case was not an option.
Rather, to keep Ms. Cooper “reasonably informed” per District of Columbia Rule
1.4(a), Mr. Lattimer was obligated to respond and explain the work he had done—
or if no work had been done, why this was the case. 9
We conclude that Mr. Lattimer’s minimal email contact and failure to return
any of Ms. Cooper’s calls for three months after he was retained violated District of
9
Mr. Lattimer argues that “[he] and Ms. Cooper did not have a good
relationship at all. In fact it was hanging by a thread[,]” and the “best way” to
“salvage whatever relationship that they had” was to minimize his contact with her.
If Mr. Lattimer deemed the relationship salvageable, his obligation was to comply
with District of Columbia Rule 1.4(a); if he deemed the relationship beyond repair,
his obligation was to withdraw from the representation per District of Columbia
Rule 1.16(a)(1) (“[A] lawyer . . . shall withdraw from representation of a client if:
the representation will result in a violation of the Rules of Professional
Conduct . . . .”).
12
Columbia Rule 1.4(a). See In re Bernstein, 707 A.2d at 376; In re Dietz, 633 A.2d
at 850.
B. Virginia Rules 1.1 and 1.3(a)10
Virginia Rule 1.1 requires lawyers to “provide competent representation to a
client. Competent representation requires the legal knowledge, skill,
thoroughness[,] and preparation reasonably necessary for the representation.”
Comment five to the Rule elaborates that:
Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements
of the problem, and use of methods and procedures
meeting the standards of competent practitioners. It also
includes adequate preparation. The required attention
and preparation are determined in part by what is at
stake; major litigation and complex transactions
ordinarily require more elaborate treatment than matters
of lesser consequence.
10
While acknowledging that the Virginia Rules were controlling and that
Virginia law should direct analysis of whether violations occurred, the Hearing
Committee asserted that it “rel[ied] on the Virginia Rules and precedent in
reaching its recommendations, except where [it] [was] unable to find relevant
precedent. In those situations, the Committee [] look[ed] to the decisions of the
District of Columbia Court of Appeals.” In the absence of any objection by Mr.
Lattimer and because the Virginia Rules closely track the District’s corresponding
rules, we do the same.
13
Whether an attorney has “fail[ed] to provide competent representation is a matter
decided on a case by case basis.” Weatherbee v. Va. State Bar, 689 S.E.2d 753,
757 (Va. 2010) (internal quotation marks omitted). Relatedly, Virginia Rule 1.3(a)
requires attorneys to “act with reasonable diligence and promptness in representing
a client.” See Virginia Rule 1.3 cmt. 3 (noting that “[a] client’s interests often can
be adversely affected by the passage of time or the change of conditions”). An
attorney may violate either Virginia Rule 1.1 or 1.3(a) by, for example, failing to
obtain the necessary documentation to support a motion and failing to file the
motion on time. See, e.g., Rice v. Va. State Bar, 592 S.E.2d 643, 644 (Va. 2004)
(Virginia Rule 1.3(a)); cf. In re Nwadike, 905 A.2d 221, 224, 227, 233 (D.C. 2006)
(agreeing with the Board’s conclusion that attorney violated District of Columbia
Rule 1.1(b), which obliges attorneys to “serve a client with skill and care
commensurate with that generally afforded to clients by other lawyers in similar
matters,” by failing to file a timely and complete Super. Ct. Civ. R. 26(b)(4)
statement because the submission did not include the substance of the expert’s
expected testimony). An attorney may violate both rules by, inter alia, “suing the
wrong defendants; failing to amend the complaint to name the proper defendants
after they became known to him . . . [and] failing to request an extension of time to
produce an essential expert’s report . . . .” In re Speights, 173 A.3d 96, 99 (D.C.
2017) (per curiam). Mr. Lattimer was charged with violating Rule 1.1 and Rule
14
1.3(a) in connection with his representation of Denise Wilkins, who sought to sue
the individuals responsible for the death of her son, Justin Lamar Davis, while he
was a patient at a state psychiatric hospital.
1. Failure to Investigate
The Hearing Committee, and the Board in turn, made the following findings
regarding Mr. Lattimer’s representation of Ms. Wilkins: Ms. Wilkins’s son, Mr.
Davis, had been committed to Virginia’s Central State Hospital in January 2010.
While there, he was killed by another patient who was known by staff to be violent
and to have threatened Mr. Davis. Mr. Davis and the other patient were housed on
the same ward, in unlocked rooms. An official report of the incident prepared by
the hospital determined that the failure of staff to monitor the ward “provided the
opportunity” for the attack on Mr. Davis.
In September 2011, Ms. Wilkins hired Mr. Lattimer to file a lawsuit on her
behalf and subsequently signed a retainer agreement.11 Before Mr. Lattimer began
work on the case, Ms. Wilkins provided him with a copy of the hospital report with
11
Ms. Wilkins had previously sought assistance from other counsel.
15
all of the names of the hospital employees redacted. Five months later, in late
February 2012 (just before the statute of limitations ran), Mr. Lattimer filed a
complaint raising, inter alia, claims of grossly negligent supervision and deliberate
indifference, in which he named as one of the defendants the director of the
hospital, Vicki Montgomery. Mr. Lattimer sued Ms. Montgomery because he
erroneously believed that she was running the hospital at the time of Mr. Davis’s
death, and he sought to hold her liable in that capacity; in fact, at the time of Mr.
Davis’s death, the director was Dr. Charles Davis. Although Mr. Lattimer
subsequently filed an amended complaint, he again misidentified Ms. Montgomery
as the hospital director and again asserted her liability as such. 12 The federal
district court ultimately granted Ms. Montgomery’s motion for summary
judgment, 13 finding that she did not have any relevant supervisory responsibilities
at the hospital at the time of Mr. Davis’s death. The court also denied Mr.
Lattimer’s beyond-the-eleventh-hour motion for leave to file a second amended
complaint to add Dr. Davis as a defendant because he could not satisfy the
12
For example, Mr. Lattimer argued in his opposition to Ms. Montgomery’s
motion to dismiss his amended complaint that “[a]s the Director of the Hospital, it
is reasonable to infer that she was responsible for the day to day operations of the
facility and had an obligation to take all reasonable steps to assure the safety of
Justin Davis.” (emphasis added).
13
By this time, she was the last remaining defendant.
16
requirements of Fed. R. Civ. P. 15(c) to allow his amended complaint to relate
back to his timely-filed complaint. See infra note 21.
Both the Board and the Hearing Committee broadly critiqued Mr. Lattimer’s
investigation of Ms. Wilkins’s case, and on this basis concluded he had violated
Virginia Rules 1.1 and 1.3(a). As signaled by our above, abridged recitation of the
Board’s and Hearing Committee’s factual findings, our focus is more tailored.14
For the purposes of this case, we accept Mr. Lattimer’s litigation theory and his
decision to sue a senior hospital official in federal court. See Virginia Rule 1.3
cmt. 1 (“A lawyer has professional discretion in determining the means by which a
matter should be pursued.”). We further accept his decision to seek to hold liable
the director of the hospital as that senior official. But having made that decision, it
was incumbent on Mr. Lattimer to do sufficient, timely investigation to accurately
identify who the director of the hospital was at the time of Mr. Davis’s death.
14
Thus we need not address many of the challenges Mr. Lattimer raises to
the analysis of the Hearing Committee or the Board regarding his failure to take
other specific investigative steps, such as taking pre-litigation discovery, obtaining
an un-redacted copy of the hospital’s investigative report, hiring an investigator
instead of conducting his own investigation, or discussing Ms. Wilkins’s case with
her prior counsel (who testified that he believed the state was willing to settle her
case for $500,000). And because we do not rely on the testimony of Disciplinary
Counsel’s expert, we need not address Mr. Lattimer’s arguments as to his
qualifications or the appropriateness of his testimony as an expert.
17
In his initial brief to this court, Mr. Lattimer does not directly address the
inadequacy of his investigation into the identity of the director of the hospital at the
time of Mr. Davis’s death, the fact that he erroneously sued Ms. Montgomery, or
his belated, unsuccessful attempt to sue the actual director. 15 But in the context of
challenging a suggestion that he could have discovered the director’s identity
through pre-filing discovery, he asserts that no discovery was needed because “all
one had to do was read the newspaper.” He elaborates in a footnote that “[a]nyone
interested in [Mr. Davis’s] murder would surely try and educate himself/herself as
much as possible. Reading media accounts about the incident is the least that one
would do.”
What is notable about this passage is that Mr. Lattimer nowhere asserts that
this is what the record reflects he did in the four months between taking Ms.
Wilkins’s case and filing her complaint. And for good reason. Mr. Lattimer’s file
contained no evidence that he read contemporary news reports or tried to “educate
15
In his reply brief, Mr. Lattimer “clearly and unequivocally challenges the
contention that he did not properly investigate Ms. Wilkins’[s] matter before filing
a complaint [and] sued the wrong party,” but says nothing more about his
erroneous designation of Ms. Montgomery as the hospital director in Ms. Wilkins’s
complaint or amended complaint, or his failed effort to file a second amended
complaint to sue Dr. Davis.
18
himself[] as much as possible.” His file contained no evidence of pre-filing
investigation at all, other than one press release announcing Ms. Montgomery’s
promotion to hospital director, dated October 22, 2010, six months after Mr.
Wilkins’s death—which itself should have put Mr. Lattimer on notice that more
investigation into the identity of the director was required. 16 Mr. Lattimer testified
before the hearing committee that, before he filed Ms. Wilkins’s complaint in
February 2012, he “got on the internet” to “start reading everything that I can about
the hospital . . . [about] how it is set up in terms of what they do.” He further
testified he looked at “personnel” and “I see who does what. Who is in charge of
this; who is in charge of that.” But not only is there no record of this internet
research in his files, his testimony indicates that he was describing what could be
seen on the hospital’s (presumably current in 2012) website, not newspaper articles
from the time of Mr. Davis’s death in 2010. And then there is the fact that a
newspaper article from the time of Mr. Davis’s death very likely would have stated
16
Before the Hearing Committee Mr. Lattimer submitted another set of
documents as an exhibit, including personnel action requests and Ms.
Montgomery’s “Employee Work Profile[s].” But he did not have these documents
(which, although they broadly defined Ms. Montgomery’s duties, expressly
identified her as the Assistant Director of the hospital at the time of Mr. Davis’s
death) before he filed his complaint. Rather, he obtained these documents through
post-filing discovery.
19
who the hospital director was. 17 Thus Mr. Lattimer’s identification of Ms.
Montgomery as the hospital “director” in the initial complaint he drafted is itself
some proof that he did not review contemporary news articles—i.e., he did not
conduct the very type of investigation that he acknowledged to the Hearing
Committee would be expected under the circumstances.
Moreover, whatever the extent of his investigation before he filed his initial
complaint, he was certainly obligated to do additional investigation once Ms.
Montgomery put him on notice in her March 2012 motion to dismiss that she was
not the director of the hospital at the time of Mr. Davis’s murder. Yet, Mr.
Lattimer filed an amended complaint in which he continued to identify Ms.
Montgomery as the hospital director, again basing her liability on this purported
role. Ms. Montgomery reiterated her denial that she was the hospital director in
subsequent court filings, first in another motion to dismiss filed in April 2012, and
then in a motion for summary judgment with an accompanying declaration filed in
May 2012.18 Even then, Mr. Lattimer continued to assert that Ms. Montgomery
17
In fact, Mr. Lattimer cites to one such article, for the first time to any
tribunal, in his brief to this court.
18
In her declaration, Ms. Montgomery stated that she was the assistant
director of the hospital at the time of Mr. Davis’s death, and she disavowed any
relevant administrative or supervisory duties in that role.
20
was the hospital director, or at least the acting hospital director, at the time of Mr.
Davis’s death. 19 He did not seek to amend his complaint to sue the correct person
under his theory of the case—Dr. Davis, the actual director of the hospital at the
time of Mr. Davis’s death—until December 2012. 20
19
In his opposition to Ms. Montgomery’s motion for summary judgment
Mr. Lattimer disputed her pointed denial that she was the hospital director or had
any relevant supervisory authority at the time of Mr. Davis’s death. But the only
evidence he cited to prove she was in fact in charge was the October 2010 press
release announcing Ms. Montgomery’s appointment as director months after the
murder. (This document included the information that Ms. Montgomery had held
the position of “acting facility director” twice previously and that her title at the
time of the press release was Acting Director, but provided no dates for her tenure
in that capacity.)
20
Mr. Lattimer tried to justify this delay by representing to the district court
that it only “became clear” to him that Dr. Davis, as “the former Director of []
Central State Hospital . . . w[as] also directly responsible for the murder of Justin
Davis,” after Mr. Lattimer obtained discovery, in particular the hospital’s
unredacted report (which identified Dr. Davis by name), and after he was able to
“consult with an expert.” But as noted above, Ms. Montgomery had been telling
him for months that she was not the hospital director at the time of Mr. Davis’s
death. Moreover, Mr. Lattimer did not account for the temporal gap between his
receipt of the unredacted report in September 2012, and his first action
acknowledging that Dr. Davis was the hospital director at the time of Mr. Davis’s
death—the filing of his motion for leave to file a second amended complaint—in
December 2012. Lastly, as discussed below, it appears that Mr. Lattimer did not
engage an expert to assist him with this case until November 2012, which itself
amounted to a violation of Virginia Rules 1.1 and 1.3(a). See infra section II.B.2.
Mr. Lattimer similarly glossed over his delay in identifying the actual
director of the hospital at the time of Mr. Davis’s death in his oral argument to the
Fourth Circuit. He represented that “[o]nce we discovered that [Ms.] Montgomery
was the assistant director, as opposed to the director at the time, we[] sought to sue
the director.” While superficially correct, this statement obscures the fact that Ms.
Montgomery told Mr. Lattimer in March 2012 that she was not the hospital
(continued…)
21
This delay doomed him under Fed. R. Civ. P. 15(c), which sets out the
criteria for allowing a plaintiff to add a new defendant in an amended complaint
and relate that amended complaint back to a complaint filed before the expiration
of the statute of limitations. See Wilkins v. Montgomery, 751 F.3d 214, 224, 225
(4th Cir. 2014). It requires a showing, inter alia, that the putative new defendant
either knew or should have known of the suit within a particular timeframe (at that
time, 120 days after filing).21 In this case, the federal district court found that there
was no reason Dr. Davis, who retired from the hospital in 2010 and moved to a
different state, should have known of Ms. Wilkins’s suit, filed in 2012. The Fourth
Circuit affirmed, explaining that the evidence established that “Dr. Davis was not
made aware until December 28, 2012, when he received an email from Appellee’s
office.” Wilkins, 751 F.3d at 225 (citing Dr. Davis’s declaration and deposition
and noting that representations to the contrary were based on unfounded assertions
that (1) Dr. Davis and Ms. Montgomery were both represented by the Office of the
Attorney General (Dr. Davis was represented by private counsel) and (2) that Dr.
(…continued)
director at the time of Mr. Davis’s death, but Mr. Lattimer did not acknowledge
that Dr. Davis was in fact the hospital director he meant to sue until he moved to
amend his complaint in December 2012.
21
Fed. R. Civ. P. 15(c)(1)(C) (referencing Fed. R. Civ. P. 4(m) (2007)); see
Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541 (2010).
22
Davis “still has an office and practices medicine at [Central State Hospital]” (Dr.
Davis’s unimpeached testimony at his deposition was that he was retired)).
This outcome was avoidable. Had Mr. Lattimer timely identified Dr. Davis
as the hospital director and diligently sought leave to amend his initial complaint to
add him as a defendant, he could have ensured Dr. Davis had actual notice of Ms.
Wilkins’s suit within the requisite 120-day timeframe. As detailed above, Ms.
Montgomery told Mr. Lattimer just a month after he filed Ms. Wilkins’s complaint
that she was not the director of the hospital at the time of Mr. Davis’s death and
was not the person he wanted to sue. Instead of taking corrective action, however,
Mr. Lattimer chose to dispute a fact that he himself concedes could have been
verified by a review of contemporaneous news articles. By the time he tried to
correct course and to amend his complaint to sue Dr. Davis, it was too late.
In sum, Mr. Lattimer aimed to sue the director of the hospital at the time of
Mr. Davis’s death, but he identified the wrong individual as serving in that role and
then failed to timely correct his mistake. To comply with Virginia Rules 1.1 and
1.3, Mr. Lattimer was not necessarily required to identify the correct party before
filing the lawsuit, see Weatherbee, 689 S.E.2d at 755–57 (concluding the
attorney’s lawsuit was frivolous in violation of Virginia Rule 3.1, rather than
23
incompetent in violation of Virginia Rule 1.1, when he sued the wrong doctor in a
medical malpractice case), nor was he required to conduct an investigation to
determine who the actual director was in any particular way. However, the
Virginia Rules did require Mr. Lattimer to make reasonable efforts to investigate
who in fact the appropriate parties were under his own theory of the case and to
diligently seek to add those parties. Cf. In re Speights, 173 A.3d at 99. This he
failed to do.
2. Failure to Engage an Expert in a Timely Manner
The Board and the Hearing Committee also found that Mr. Lattimer failed to
engage an expert in a timely manner. The district court’s initial scheduling order
required Mr. Lattimer to make expert disclosures pursuant to Fed. R. Civ. P. 26 by
October 22, 2012. 22 After he learned on or about October 23, 2012, that an expert
22
Rule 26 requires a party to disclose the identity of any proposed expert
“accompanied by a written report—prepared and signed by the witness” which
contains “(i) a complete statement of all opinions the witness will express and the
basis and reasons for them; (ii) the facts or data considered by the witness in
forming them; (iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years; (v) a list of all other cases in which, during the previous 4 years,
the witness testified as an expert at trial or by deposition; and (vi) a statement of
the compensation to be paid for the study and testimony in the case.” Fed. R. Civ.
(continued…)
24
engaged by Ms. Wilkins’s prior counsel could not assist him, Mr. Lattimer sought
and received an extension to file by November 21, 2012. On that date, Mr.
Lattimer filed with the court a “Certificate Regarding Discovery” in which he
represented to the court that a copy of his Fed. R. Civ. P. 26 expert disclosures
“were served” on opposing counsel. In fact, he did not serve any report on
November 21, and did not serve his expert’s one-page “preliminary report” (which
was dated November 26, 2012) until two weeks later. Presumably because this
preliminary report did not comply with Fed. R. Civ. P. 26,23 Mr. Lattimer served a
full report on December 21, 2012. As the Fourth Circuit later noted, this was one
month “after the agreed-upon expert disclosure date, after discovery was closed,
after Appellee filed a motion for summary judgment, and on the very date set by
the court for the filing of motions to exclude experts.” Wilkins, 751 F.3d at 223.
Because Mr. Lattimer failed to make proper expert disclosures in a timely manner,
(…continued)
P. 26(a)(2)(A), (B). “A party must make these disclosures at the times and in the
sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D) (emphasis added).
23
This report merely listed the materials the expert had reviewed and
included a single sentence of substance—the expert’s conclusory opinion that “to a
reasonable degree of medical certainty . . . the care and treatment provided to Mr.
Justin Lamar Davis fell substantially below an acceptable standard of care.”
Wilkins, 51 F.3d at 223 (explaining that “Appellant’s initial disclosure failed to
provide Appellee with any concrete explanation of [the expert’s] potential
testimony”); but see supra note 22 (explaining that Fed. R. Civ. P. 26 requires
disclosure of an expert report that contains “a complete statement of all opinions
the witness will express and the basis and reasons for them”).
25
the federal district court excluded his expert and granted summary judgment,
rulings which the Fourth Circuit affirmed. Id.
Mr. Lattimer challenges the Board’s determination that he failed to engage
an expert in a timely manner as having “no basis in fact, law[,] or logic.” He
argues that he “engaged two (2) experts in a timely manner,” and that “the
problem” was “the facts of the case” and his consequent difficulty in “getting an
expert to say what was needed and/or desired.” There are a number of flaws in this
argument.
First, according to Mr. Lattimer’s own testimony, he did not hire the first
expert; that expert was hired by prior counsel. Second, for reasons he never
explained, he only learned that this expert could not assist him the day after the
initial filing deadline for expert disclosures. Third, he ultimately did find an expert
to write a more detailed report that presumably said “what was needed and/or
desired,” given his repeated argument to the federal courts that the exclusion of
this late-filed report was “catastrophic” to his case. Fourth, the fact that this
second expert (1) initially provided a facially inadequate one-page (really one-
sentence, see supra note 23) “Preliminary Report” that post-dated the new
26
November 21, 2012 deadline for expert disclosures, 24 and (2) provided a full report
a month after the missed November 21, 2012 deadline is evidence that Mr.
Lattimer engaged this expert too late.25
Thus, we conclude that the Hearing Committee’s and Board’s finding that
Mr. Lattimer failed to timely engage an expert is supported by substantial
evidence. And we further conclude that this failure violated Virginia Rules 1.1 and
1.3(a). See Rice, 592 S.E.2d at 644 (failure to take timely action to permit client’s
motion for a sentence reduction to be heard constituted a violation of Virginia Rule
1.3(a)); cf. In re Speights, 173 A.3d at 99; In re Nwadike, 905 A.2d at 227.
24
The earliest documented communication with this expert Mr. Lattimer
could provide was dated November 25, 2012.
25
Mr. Lattimer has not renewed an argument the district court implicitly
rejected, namely that his delay in filing his expert report was justified by discovery
delays. But we note that in his December 4, 2012, email to Ms. Montgomery’s
counsel attaching his expert’s “Preliminary Report,” (1) Mr. Lattimer neither made
any mention of inability to file a full report because of issues with discovery nor
communicated an intention to provide a more comprehensive report at a later time,
and (2) he informed Ms. Montgomery’s counsel that “plaintiff has no other initial
disclosures to provide.”
27
C. Virginia Rule 8.4(c)
Virginia Rule 8.4(c) states “[i]t is professional misconduct for a lawyer to:
engage in conduct involving dishonesty, fraud, deceit[,] or misrepresentation
which reflects adversely on the lawyer’s fitness to practice law.” The Board and
the Hearing Committee concluded that Mr. Lattimer violated this rule when he
made certain “unqualified” representations to the Fourth Circuit about Dr. Davis in
an effort show that his rejected second amended complaint could fulfill the
relation-back requirements of Fed. R. Civ. P. 15(c).
The Board and the Hearing Committee made the following relevant findings
of fact: After Mr. Lattimer moved to file a second amended complaint in the
Wilkins case naming Dr. Davis as a defendant, the district court allowed Mr.
Lattimer to depose Dr. Davis to determine whether he would have had notice of the
suit within the requisite timeframe under Fed. R. Civ. P. 15(c). At this deposition,
Mr. Lattimer asked Dr. Davis if he still had a relationship with Central State
Hospital in 2012; Dr. Davis testified that he had not had an office in the hospital
after May 2010 and had no subsequent affiliation with the hospital.26
26
We reproduce Mr. Lattimer’s relevant exchanges with Dr. Davis:
(continued…)
28
(…continued)
Mr. Lattimer: Maybe you can clarify something for me.
I did look at your biography, and it indicated that you
were seeing patients in Virginia as of 2012. Is that
inaccurate?
Dr. Davis: That’s inaccurate.
[Counsel]: Object—hold on. Objection to the form of
the question. It lacks foundation. I don’t know what
biography you are referring to. But Dr. Davis you may
answer the question.
Dr. Davis: Yes. No. I have not had an office in
Virginia—I left Central State in May of 2010. And that’s
it. No practice in Virginia since that time. I’ve
consulted, but not practiced.
Mr. Lattimer: Didn’t you have any office at Central
State?
Dr. Davis: Not after May of 2010.
Mr. Lattimer: So in 2012, you did not have an office
there?
Dr. Davis: I did not. I did not return to Central State
after May 28th, 2010.
Mr. Lattimer: Did you have an office in Virginia in
2012?
Dr. Davis: I worked out of my home. But I did not have
anything to do with Central State.
* * *
Mr. Lattimer: Okay I’m sorry. You did—you indicated
that you left Central State—I remember you saying 2010.
Can you tell me when that was again?
Dr. Davis: It was in May of 2010, I retired from state
service.
Mr. Lattimer: Did you retire from medicine in Virginia
at that time?
(continued…)
29
Notwithstanding receiving Dr. Davis’s responses to his deposition questions, Mr.
Lattimer represented for the first time in his brief to the Fourth Circuit that Dr.
Davis “still has an office and practices medicine at the hospital.” 27 In its opinion,
the Fourth Circuit noted that Mr. Lattimer’s assertion was “belied by the record.”
Wilkins, 751 F.3d at 225. One of the judges on the appellate court then sent a letter
to Disciplinary Counsel enclosing the opinion and questioning Mr. Lattimer’s
“candor to the court.”
(…continued)
Dr. Davis: No, no. I retired from state service.
Mr. Lattimer: Did you perform any services on behalf of
Central State as a private individual, as opposed to a state
employee?
Dr. Davis: No, I did not.
* * *
Mr. Lattimer: So your entire or complete affiliation or
association with Central State concluded in May of
2010?
Dr. Davis: That’s correct.
When Mr. Lattimer again referenced reading Dr. Davis’s “biography” and
“other pieces of information relating to [Dr. Davis] . . . on the internet,” Dr. Davis
confirmed that there was erroneous information online because “there are
companies who gather information and put it on the internet, whether it’s accurate
or not.”
27
Before the district court Mr. Lattimer had claimed only that Dr. Davis
was still in communication with employees at the hospital, which was consistent
with Dr. Davis’s deposition testimony.
30
Mr. Lattimer challenges the Board’s determination that he violated Virginia
Rule 8.4 by engaging in conduct involving dishonesty based on these facts.28
Preliminarily, he argues that Dr. Davis’s deposition testimony that he kept in touch
with colleagues supported a reasonable inference that Dr. Davis “had a continuing
relationship with the hospital.” But this argument is a red herring. The statement
the Fourth Circuit described as “belied by the record” was Mr. Lattimer’s specific
representation that Dr. Davis “still has an office and practices medicine at the
hospital.” See Wilkins, 751 F.3d at 225.
Regarding this statement, Mr. Lattimer argues that, because there was never
any finding by the district court that Dr. Davis did not still have an office or see
patients at the hospital, he was free to argue to the contrary to the Fourth Circuit in
pursuit of his client’s interests.29 Again, Mr. Lattimer’s argument is misdirected.
28
Mr. Lattimer also argues that he did not violate Virginia Rule 3.3, which
provides that a lawyer shall not knowingly make a false statement of fact to a
tribunal. But the Board determined that Mr. Lattimer had not violated Rule 3.3,
and Disciplinary Counsel did not take exception to that determination, so it is not
before this court.
29
He did not, however, make this argument after Ms. Montgomery pointed
out in her brief to the Fourth Circuit that that the claim that Dr. Davis “still has an
office and practices medicine at the hospital” was a “factual misstatement,”
“wrong,” and with “no evidence in the records to support [the] factual assertion.”
Although he filed a reply brief, he did not address this issue, much less
acknowledge Dr. Davis’s deposition testimony to the contrary.
31
The question is not whether Mr. Lattimer was entitled to dispute on appeal the
veracity of Dr. Davis’s deposition testimony that he no longer had an office at the
hospital or saw patients there 30; rather, the question is whether Mr. Lattimer could
act as if Dr. Davis’ unequivocal denials in his deposition testimony—denials that
Mr. Lattimer himself elicited—did not exist. The Hearing Committee, and the
Board in turn, rightly expressed concern about the “unqualified” nature of Mr.
Lattimer’s statement about Dr. Davis and his failure “explain the basis for his
belief [that Dr. Davis still worked at the hospital] notwithstanding Dr. Davis’[s]
deposition.” Mr. Lattimer seeks to wrap himself in the cloak of zealous advocacy,
but his role as advocate does not authorize him to argue facts he perhaps believed
to be true, without acknowledging they were contradicted by record facts.
The Hearing Committee and the Board concluded that Mr. Lattimer’s
statements to the Fourth Circuit were at least “recklessly false” and amounted to
“conduct involving dishonesty” in violation of Rule 8.4(c). We conclude that Mr.
Lattimer’s statement is more properly characterized as a “misrepresentation” of
30
Whether he had a record basis to do so is subject to question—Mr.
Lattimer never confronted Dr. Davis with any particular internet research and only
later, before the Hearing Committee, produced an undated internet print out from
“Vitals.com” that he asserts gave him a “good-faith basis” to question Dr. Davis’s
deposition testimony—but we need not resolve that question to conclude that he
violated Rule 8.4(c).
32
record facts in violation of the rule. We look to the Fourth Circuit’s application of
the similarly phrased 8.4(c) of New York’s Rules of Professional Conduct in In re
Liotti, 667 F.3d 419 (4th Cir. 2011). Noting that “our adversary system depends
on a most jealous safeguarding of truth and candor” and “[o]ne of the most
important aspects of the work of an appellate lawyer is the obligation to provide
the court with a fair and accurate presentation of the relevant facts,” id. at 429, the
court in Liotti determined that the attorney had made multiple misrepresentations,
including asserting that certain evidence established his client’s innocence without
revealing to the court that his client had subsequently admitted to a government
agent that he had fabricated this evidence (the client then recanted this admission).
Id. As discussed above, in this case, Mr. Lattimer’s affirmative statements about
Dr. Davis were similarly contradicted by record facts that he did not acknowledge
to the Fourth Circuit.
33
III. Sanctions 31
Having concluded that Mr. Lattimer committed multiple rule violations, we
turn to the question of the appropriate sanction. D.C. Bar Rule XI, § 9(h)(1)
provides that this 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 unwarranted.” We have interpreted
this rule as giving “broad discretion” to the Board and correspondingly requiring
this court to give “considerable deference” to the Board’s recommendation. In re
Chapman, 962 A.2d 922, 924 (D.C. 2009) (per curiam). But we have also
recognized that “the responsibility for imposing sanctions rests with this court in
the first instance.” Id.; accord In re Goffe, 641 A.2d 458, 464 (D.C. 1994) (per
curiam) (“When the court disagrees with the Board as to the seriousness of the
offense or the demands of consistency, . . . the Board’s recommendations are
accordingly granted less weight.” (internal quotation marks omitted)). Ultimately,
“the buck stops here.” In re Chapman, 962 A.2d at 924 (internal quotation marks
omitted).
31
Although Mr. Lattimer violated both the District of Columbia’s and
Virginia’s rules, we apply the District of Columbia’s law for our sanctions
analysis. See, e.g., In re Ponds, 888 A.2d 234, 240, 245 (D.C. 2005).
34
In this case the Board proposed that Mr. Lattimer be suspended for sixty
days for the “totality of [his] proven wrongdoing” and ordered to pay restitution of
$4,500 plus statutory interest to Mamie Strange, with proof of payment prior to
reinstatement. 32 Mr. Lattimer challenges the Board’s recommendation that a term
of suspension is warranted in this case; he likewise disputes Disciplinary Counsel’s
argument that the additional imposition of a fitness requirement is warranted. Mr.
Lattimer raises no argument with respect to restitution, and we deem conceded the
appropriateness of that sanction. 33
To determine what sanction to impose, we consider “the nature of the
violation, the mitigating and aggravating circumstances, the need to protect the
public, the courts, and the legal profession, and the moral fitness of the attorney.”
In re Cater, 887 A.2d 1, 17 (D.C. 2005) (internal quotation marks omitted).
Relevant factors include “(1) the nature and seriousness of the misconduct; (2)
32
The Board reasoned that Mr. Lattimer took Ms. Strange’s money to
represent her son but “contributed nothing of value to Mr. Strange,” and in fact did
not communicate with him for six months, leading him to believe that Mr. Lattimer
“had abandoned his case.”
33
Even if Mr. Lattimer had challenged this sanction, we would conclude
that an order to reimburse Ms. Strange was appropriate. See In re Robertson, 612
A.2d 1236, 1239–40 (D.C. 1992) (holding that requiring an attorney to pay
restitution of monies “that the client paid or entrusted to the lawyer in the course of
representation” is a permissible condition of probation or reinstatement).
35
prior discipline; (3) prejudice to the client; (4) the respondent’s attitude; (5)
circumstances in mitigation and aggravation; and (6) the mandate to achieve
consistency.” In re Vohra, 68 A.3d 766, 771 (D.C. 2013).
Mr. Lattimer’s argument against any term of suspension is premised on a
minimization or outright denial of his misconduct that does not align with the
account of his rule violations set forth above. This misconduct was sufficiently
serious, distressing to his clients, and taxing to our judicial system as to warrant
some term of suspension, notwithstanding Mr. Lattimer’s limited disciplinary
history over his decades of practice.34 Setting aside aggravating factors 35—which,
as discussed below, we view as compelling a fitness requirement—we are
persuaded by the cases the Board cites that a sixty-day term is consistent with the
discipline we have imposed in cases where a respondent violated the same or a
similar aggregation of Rules. See, e.g., In re Fox, 35 A.3d 441, 441–42 (D.C.
2012) (per curiam); In re Bah, 999 A.2d 21, 21 (D.C. 2010) (per curiam)
34
In 2006, Respondent was issued an informal admonition for conduct that
took place in 2003 involving his failure to properly distribute the proceeds of a
settlement, in violation of Rules 1.1(a) (competent representation), 1.l(b) (skill and
care), 1.5(e) (failure to advise client in writing of division of fees and
responsibilities of co-counsel), and 1.15(a) and (b) (failure to promptly deposit a
settlement check in escrow and properly disburse client funds).
35
Mr. Lattimer has not argued there are any circumstances we should
consider in mitigation.
36
(nonprecedential); In re Cole, 967 A.2d 1264, 1268–69 (D.C. 2009); In re
Chapman, 962 A.2d at 927; In re Uchendu, 812 A.2d 933, 941–42 (D.C. 2002); In
re Rosen, 481 A.2d 451, 455 (D.C. 1984).
Our view of the appropriate sanction diverges from that of the Board,
however, on the question of imposing a fitness requirement in addition to a term of
suspension. The two sanctions serve different purposes, as we explained in In re
Cater:
The fixed period of suspension is intended to serve as the
commensurate response to the attorney’s past ethical
misconduct. In contrast, the open-ended fitness
requirement is intended to be an appropriate response to
serious concerns about whether the attorney will act
ethically and competently in the future, after a period of
suspension has run. Primarily, our concern is that the
attorney’s resumption of the practice of law will not be
detrimental to the integrity and standing of the Bar, or to
the administration of justice, or subversive to the public
interest.
887 A.2d at 22 (internal quotation marks omitted). “[T]o justify requiring a
suspended attorney to prove fitness as a condition of reinstatement, the record in
the disciplinary proceeding must contain clear and convincing evidence that casts a
serious doubt upon the attorney’s continuing fitness to practice law.” Id. at 6; see
also id. at 24. To determine whether the requisite serious doubt has been
37
substantiated, it may be “useful” to consider the criteria we evaluate to determine if
an attorney should be reinstated to the bar under In re Roundtree, 503 A.2d 1215,
1217 (D.C. 1985). 36 In re Cater, 887 A.2d at 21.
Three broad concerns lead us to conclude that imposition of a fitness
requirement is necessary in this case: (1) Mr. Lattimer’s adamant refusal to accept
responsibility and his corresponding willingness to blame any deficiencies in his
representation on his clients; (2) his decision to file a patently frivolous lawsuit
against a former client; and (3) his repeated practice before multiple tribunals of
presenting a revisionist narrative of his actions.
First, Mr. Lattimer’s failure to acknowledge wrongdoing and accept
responsibility pervades his arguments to this court. He asserts he committed no
rule violations and that the determinations by the Board to the contrary are without
foundation. Specifically, Mr. Lattimer argues “[t]here was no evidence to support
36
These factors include “(1) the nature and circumstances of the misconduct
for which the attorney was disciplined; (2) whether the attorney recognizes the
seriousness of the misconduct; (3) the attorney’s conduct since discipline was
imposed, including steps taken to remedy past wrongs and prevent future ones; (4)
the attorney’s present character; and (5) the attorney’s present qualifications and
competence to practice law.” In re Roundtree, 503 A.2d at 1217. The second,
third, and fourth factors are particularly pertinent to our discussion below.
38
a finding that [he] improperly exercised his judgment in prosecuting the claim of
Denise Wilkins”; “[t]here was no evidence to support a determination that [he]
engaged in dishonesty with respect to an argument made to a tribunal” in the
Wilkins case; the Board and the Hearing Committee’s determination that he failed
to adequately investigate the Wilkins case “is not supported by any evidence of any
kind”; the “contention” that he failed to engage an expert in the Wilkins case in a
timely manner “has no basis in fact, law[,] or logic”; and that “[t]he Hearing
Committee had no basis upon which to find that [he] failed to communicate” with
either Ms. Cooper or Mr. Strange. (emphasis added).
Instead of accepting responsibility for his misconduct, Mr. Lattimer seeks to
blame others, most frequently his clients. 37 He blames Mr. Strange, who was
indigent and incarcerated, for only calling collect instead of using other means of
37
He also accuses Disciplinary Counsel of “misrepresent[ing] the record
throughout its Brief.” We highlight one accusation in particular. Mr. Lattimer
notes that Disciplinary Counsel did not acknowledge a letter it sent him proposing
informal admonition in connection with alleged misconduct in Mr. Strange’s case.
Mr. Lattimer suggests that this letter calls into question Disciplinary Counsel’s
position that he engaged in serious misconduct. But this letter was sent before any
evidence was taken in the Strange case (or the Cooper and Wilkins cases). Mr.
Lattimer declined the offer of an informal admonition and requested a hearing. At
that hearing, evidence was elicited that established that Mr. Lattimer did not
communicate with Mr. Strange for six months. Mr. Lattimer himself misrepresents
the record by suggesting this prehearing letter in any way undercuts the record
established at the subsequent evidentiary hearing.
39
communication. See supra note 4. He asserts Ms. Cooper was a difficult client,
while ignoring the root cause of the problem: his failure to adequately
communicate with her. 38 Most shocking, Mr. Lattimer now claims that the Wilkins
case was flawed from its inception because (1) his client, Ms. Wilkins, “had caused
[her son, Mr. Davis,] to be at Central State Hospital,” and (2) Mr. Davis was an
unstable and violent individual.
We are extremely concerned that Mr. Lattimer would insinuate that Ms.
Wilkins was in some part responsible for her son’s killing by another patient
simply because she called the authorities when her son was in crisis, which
eventually led to his hospitalization. With Mr. Davis in its custody, Central State
Hospital was responsible for his care and protection; and, as Mr. Lattimer well
knows, an official state report concluded that his death was the result of
“substantiated” “staff neglect.” We are similarly dismayed by Mr. Lattimer’s
graphic description of Mr. Davis’s behavior while in the throes of mental illness
and his insinuation that Mr. Davis’s violent behavior precipitated his death. As a
society, we commit individuals to psychiatric facilities when mental illness has
rendered them a danger to themselves or others; and, for the duration of their
38
He then makes the illogical argument that to “salvage their relationship”
he had to minimize contact with her. See supra note 9.
40
commitment, it is the responsibility of the facility to keep them and others safe.
Mr. Lattimer’s arguments about Ms. Wilkins and her son are denigrating as well as
diversionary. We cannot say if Ms. Wilkins could have ultimately won her case.
But we know why she lost: Mr. Lattimer failed to timely name as a defendant the
individual who was the director of the hospital at the time of Mr. Davis’s death as
required by his own theory of the case, and he failed to timely file his expert
report. In short, the faults apparent in Mr. Lattimer’s representation are his alone,
and his refusal to accept responsibility and his inappropriate blame-shifting are
grounds to question his fitness.
Mr. Lattimer’s treatment of his clients leads us to our second major concern:
Mr. Lattimer’s decision to sue one of his clients, Ms. Cooper, for alleged
defamatory statements she made to the D.C. Bar Clients’ Security Fund (“CSF”).
Ms. Cooper applied to the CSF in an attempt to recoup funds Mr. Lattimer had
refused to return to her. 39 Pursuant to Bar Rules, Ms. Cooper’s statements to the
39
After Mr. Lattimer initially declined to refund the money Ms. Cooper had
paid him, she filed for arbitration with the Attorney/Client Arbitration Board,
where she was afforded a full refund. Mr. Lattimer did not refund the money, so
she petitioned the Superior Court to confirm the award. Mr. Lattimer opposed her
petition in Superior Court, so Ms. Cooper applied to the CSF. We do not consider
this history in determining the need for a fitness requirement, nor do we fault Mr.
Lattimer for legally engaging in a fee dispute in Superior Court; however, Mr.
(continued…)
41
CSF were absolutely privileged, and she was immune from any suit based on those
statements. D.C. Bar R. XII, § 14 (“Claims submitted to the [CSF] shall be
absolutely privileged, and no complaint or action predicated thereon may be
instituted or maintained.”). Mr. Lattimer’s lawsuit against Ms. Cooper was both
frivolous and harassing. Cf. In re Spikes, 881 A.2d 1118, 1119 (D.C. 2005)
(holding that a defamation suit predicated in part on a complaint made to bar
counsel, covered by an analogous immunity provision, was frivolous in violation
of Rule 3.1).
In an effort to defend his decision to sue Ms. Cooper, Mr. Lattimer argues
that “[b]ut for the immunity umbrella, success was certain.” This argument hurts
rather than helps Mr. Lattimer because it demonstrates his continued failure to
understand the protection D.C. Bar R. XII, § 14 provides. There was no possibility
of success because there was no legitimate suit to bring; statements made to the
CSF are not actionable. Equally troubling is Mr. Lattimer’s argument that “he had
never heard of [CSF] before, did not realize that it was associated with the Bar, and
when he did, he dismissed the lawsuit.” Mr. Lattimer’s ignorance of the D.C. Bar
(…continued)
Lattimer went far beyond what was legally and professionally acceptable when he
filed a frivolous lawsuit against Ms. Cooper.
42
Rules concerning the CSF is an aggravating, rather than mitigating, factor in our
consideration of his competence as a member of our Bar because it defeats the very
protection the rule is intended to provide. Cf. In re Millstein, 667 A.2d 1355, 1356
(D.C. 1995) (per curiam) (recognizing ignorance of the Rules of Professional
Conduct to be an aggravating factor). Likewise his subsequent withdrawal40 of the
suit does not absolve him of frivolously filing it.
The Hearing Committee and the Board considered this lawsuit to be an
aggravating factor, and so do we. See In re Baber, 106 A.3d 1072, 1075, 1077
(D.C. 2015) (per curiam) (holding that an attorney’s frivolous lawsuit against a
former client was an aggravating factor). This lawsuit was “detrimental to the
integrity and standing of the Bar, [] to the administration of justice, [and]
subversive to the public interest.” In re Cater, 887 A.2d at 22. Mr. Lattimer’s
continued insistence that the suit had some merit and his attempted excuse that he
did not know the Bar Rules make his lawsuit against Ms. Cooper a compelling
reason to impose a fitness requirement.
40
Mr. Lattimer’s particular motivation does not affect our analysis. The
Board never determined what prompted him to withdraw the suit—his independent
research, or a letter from Disciplinary Counsel calling Mr. Lattimer’s attention to
the fact that Ms. Cooper’s statements to the CSF were privileged.
43
In addition to his failure to accept responsibility, his efforts to shift blame
for his shortcomings to his clients, and his decision to bring a patently frivolous
lawsuit against client, we add one more consideration: Mr. Lattimer’s persistent
willingness to revise history and take whatever position best suits his needs at that
particular time, as evidenced by his litigation of this disciplinary matter.
For example, as discussed above, Mr. Lattimer sought to sue Ms.
Montgomery because he erroneously thought she was the director of the hospital at
the time of Mr. Davis’s death, see supra section II.B.1. But when faced with the
accusation that he failed to adequately investigate his case to ensure he timely
named the correct individual as a defendant, Mr. Lattimer told the Hearing
Committee that he knew all along that Ms. Montgomery was the assistant director
at the time of Mr. Davis’s death and Dr. Davis was the actual director of the
hospital. 41 According to this new, nonsensical narrative, (1) he decided to sue only
41
Mr. Lattimer’s testimony was as follows:
Question: And Ms. Montgomery was at the time the
assistant director of the hospital, correct?
Answer: She was assistant director.
Question: You knew that when you filed the lawsuit?
Answer: Of course I did.
44
Ms. Montgomery, even as he knowingly misidentified her42; (2) he knowingly
chose not to sue Dr. Davis because, for some unexplained reason, he had “to make
a choice,” and he chose Ms. Montgomery over Dr. Davis because he somehow
determined that Dr. Davis was just a “figurehead”; and (3) despite the
uncontestable fact that he ultimately did move to amend his complaint a second
time to add Dr. Davis, he currently maintains Ms. Montgomery was the “only”
person to sue.43
Similarly, although Mr. Lattimer told the District Court and the Fourth
Circuit that his expert was “immeasurabl[y]” important and that his exclusion was
“catastrophic,” once faced with an accusation of misconduct, he told the Hearing
Committee and this court that he did not need an expert. And the fact that he did
ultimately file a more detailed report, just too late, is inconsistent with his assertion
42
Mr. Lattimer testified:
Question: [W]hy did you call her the director [in your
complaint]?
Answer: She was the director at the time I filed the
lawsuit.
Question: Did you say anywhere in the lawsuit that she
wasn’t the director at the time the events occurred?
Answer: No, I didn’t. Why would I do that?
43
Mr. Lattimer seemingly forgets his inconvenient assertions to the District
Court and the Fourth Circuit that “once” he “discovered” Ms. Montgomery was the
assistant director, he sought to add Dr. Davis as a defendant. See supra note 20.
45
in these disciplinary proceedings that he was stymied in filing an expert report at
all because of the challenging “facts” of the Wilkins case. 44
Lastly, we have already discussed how Mr. Lattimer argued in the Fourth
Circuit, without any acknowledgment of the directly contradictory record evidence
that he elicited from Dr. Davis at his deposition, that Dr. Davis still had an office
or practiced medicine at the hospital. See section II.C.
To recap and put the above observations in the framework of In re Cater,
887 A.2d at 22, and the factors set forth in In re Roundtree, 503 A.2d at 1217, Mr.
Lattimer has failed to acknowledge any evidence of wrongdoing or recognize its
seriousness. His blaming and shaming of his clients is “subversive to the public
interest” and leads us to be skeptical of his willingness to remedy past wrongs as
well as his present character. In re Cater, 887 A.2d at 22. His frivolous lawsuit
and ignorance of the Rules were “detrimental to the integrity and standing of the
Bar” and “to the administration of justice.” Id. Lastly, his willingness to engage in
44
We would be remiss if in discussing the expert report in Ms. Wilkins’s
case we did not also note that Mr. Lattimer appeared to be revising history in real
time in the federal district court litigation. This is exemplified by the fact that he
falsely certified that he had provided his expert’s preliminary report to counsel on
November 21, 2012, even though the expert did not submit the (undated)
preliminary report to Mr. Lattimer until November 26, 2012.
46
revisionist history in this court and rewrite facts to his advantage calls into question
not only his present character but also his present competence to practice law. All
this amounts to clear and convincing evidence that “casts a serious doubt” on Mr.
Lattimer’s continuing fitness to practice law and thus justifies the imposition of a
fitness requirement. Id. at 6.
IV.
For the reasons stated above, we conclude that Mr. Lattimer violated District
of Columbia Rule 1.4(a) and Virginia Rules 1.1, 1.3(a), and 8.4(c) and impose a
sanction of a sixty-day suspension, restitution, and a fitness requirement.
So ordered.