In re Blackwell ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-BG-0565
IN RE KENNETH BLACKWELL, RESPONDENT.
A Member of the Bar
of the District of Columbia
(Bar Registration No. 441413)
On Report and Recommendation
of the Board on Professional Responsibility
(Disciplinary Docket No. 2016-D396)
(Board Docket No. 20-BD-019)
(Argued April 19, 2023 Decided August 10, 2023)
Kenneth L. Blackwell, pro se.
Theodore (Jack) Metzler, Senior Assistant Disciplinary Counsel, for the
Office of Disciplinary Counsel. Hamilton P. Fox, III, Disciplinary Counsel, Myles
V. Lynk, Senior Assistant Disciplinary Counsel, and Julia L. Porter, Deputy
Disciplinary Counsel, were on the brief for the Office of Disciplinary Counsel.
Before MCLEESE, ALIKHAN, and SHANKER, Associate Judges.
SHANKER, Associate Judge: In this bar disciplinary matter, the District of
Columbia Board on Professional Responsibility (“Board”) concluded in a Report
and Recommendation (“Report”) that Respondent Kenneth L. Blackwell violated
D.C. R. Prof. Conduct 3.4(c), which prohibits a lawyer from knowingly disobeying
an obligation under the rules of a tribunal, by failing to pay court-ordered child
2
support, and Rule 8.1(a), which prohibits a lawyer from knowingly making a false
statement of fact in connection with a disciplinary matter, by knowingly providing
a false response to a question Disciplinary Counsel posed during its investigation.
The Board recommended a sanction of a six-month suspension with all but 60 days
stayed in favor of three years of probation.
Mr. Blackwell filed exceptions to the Report in this court. Mr. Blackwell
essentially concedes the Rule 3.4(c) violation but takes issue with its severity, and
he disputes the Board’s finding of a Rule 8.1(a) violation. He also argues that
Disciplinary Counsel’s delay in issuing the Specification of Charges was
unreasonable and prejudicial, and he seeks a lesser sanction. We assume based on
Mr. Blackwell’s concession that he violated Rule 3.4(c) and agree with the Board
that Mr. Blackwell violated Rule 8.1(a). We are not persuaded by Mr. Blackwell’s
argument that Disciplinary Counsel’s delay in prosecuting the case deprived him of
due process. Finally, we adopt the Board’s recommended sanction.
I. Background
A. Factual Background
3
The Ad Hoc Hearing Committee and the Board made the following findings
of fact, which are largely undisputed and which we adopt, mindful of our obligation
to “accept the findings of fact made by the Board unless they are unsupported by
substantial evidence of record.” D.C. Bar R. XI, § 9(h)(1).
Mr. Blackwell was admitted to the District of Columbia Bar in 1994. Mr.
Blackwell and Cinzia Allen are the parents of D.B. They have never been married,
but have been parties to various child support arrangements since 2004, when D.B.
was born. In 2006, Mr. Blackwell and Ms. Allen engaged in a custody dispute that
resulted in the Virginia Division of Child Support Enforcement (“VDCSE”)
requesting that the Maryland Office of Child Support Enforcement (“MOCSE”) in
Prince George’s County issue a child support order pursuant to the Uniform
Interstate Family Support Act. 1 In May 2007, the Circuit Court of Prince George’s
County, Maryland, issued a consent order requiring Mr. Blackwell to make monthly
child support payments to the MOCSE in the amount of $156. That court later
increased the payment amount to $250 per month and then to $500 per month and
ordered Mr. Blackwell to pay $50 per month toward arrearages, which it assessed at
$5,000 as of December 2007.
Ms. Allen and D.B. lived in Virginia during the relevant period, while Mr.
1
Blackwell lived in Maryland or the District of Columbia.
4
In April 2009, Ms. Allen asked the Juvenile and Domestic Relations District
Court of Prince William County, Virginia, to register the Maryland support order
and filed a motion to hold Mr. Blackwell in contempt for failure to pay child support,
alleging that he was $12,500 in arrears. The Virginia court registered the Maryland
support order, making it enforceable in Virginia. After a hearing in December 2009,
the Virginia court held Mr. Blackwell in contempt and sentenced him to 90 days in
jail with a purge charge of $3,000 and an appeal bond of $16,500. Mr. Blackwell’s
brother paid the purge charge, which was then credited toward Mr. Blackwell’s
support obligations.
Meanwhile, on a parallel track in Maryland, the MOCSE filed a petition for
contempt with a Maryland court in September 2009. The court held hearings on the
petition in November 2009 and March 2010. During the 2010 hearing, Mr.
Blackwell told the magistrate judge that he was unemployed and was therefore
unable to make all required payments. The magistrate judge made clear that Mr.
Blackwell was obligated to pay child support regardless of his employment status,
and scheduled another contempt hearing in May 2010. Mr. Blackwell then paid
$100 to the court.
At the May hearing, Mr. Blackwell told the Maryland court that he had been
5
making payments directly to Ms. Allen, but he had no documentation to support that
claim. The court advised him that he would receive credit for payments made
directly to Ms. Allen only if he submitted a notarized statement from Ms. Allen
certifying the payments. Neither the MOCSE nor the VDCSE had records of
payments from Mr. Blackwell in the months following this hearing, and neither Mr.
Blackwell nor Ms. Allen produced records of any payments Mr. Blackwell made
directly to Ms. Allen during that time.
In October 2010, at Ms. Allen’s request, the VDCSE closed its pending case
against Mr. Blackwell. The VDCSE notified the MOCSE of the closure but
requested that Maryland not terminate its support order so that Ms. Allen could
reopen the case at a later date if necessary. VDCSE advised MOCSE that, at the
time of the case closure, Mr. Blackwell owed $18,520—not including any payments
Mr. Blackwell may have made directly to Ms. Allen—but that the arrearages were
removed for purposes of enforcement due to the closure. In December 2010, in
response to a joint motion submitted by Ms. Allen and Mr. Blackwell, the Maryland
court dismissed the contempt proceedings, required Mr. Blackwell to make
payments directly to Ms. Allen, and closed the child support proceedings, but it left
the child support order in effect.
In June 2014, in response to a request from Ms. Allen, the VDCSE reactivated
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its case and began mailing “Change in Payee” notices to Mr. Blackwell, directing
him to send the child support payments to the agency instead of to Ms. Allen. At
that point, the VDCSE’s records indicated that Mr. Blackwell was $36,520 in
arrears. Mr. Blackwell asserted that he never received these “Change in Payee”
notices. Ms. Allen acknowledged that the VDCSE had trouble serving Mr.
Blackwell and that mail the VDCSE sent to Mr. Blackwell had been returned,
although VDCSE records show that the agency tried to contact Mr. Blackwell by
email as well. In any event, there is no evidence that the VDCSE ever served Mr.
Blackwell or sent Mr. Blackwell notice by certified mail, as required by Va. Code
Ann. § 20-60.5(A)(2), and the Office of Disciplinary Counsel conceded that it had
not established that Mr. Blackwell received the letters.
The VDCSE also contacted Mr. Blackwell by telephone. In November 2014,
a VDCSE staff member spoke to Mr. Blackwell. Notes from this call indicate that
Mr. Blackwell told the VDCSE that he would begin making payments. VDCSE
records show, however, that no payments were made. In June 2016, a VDCSE staff
member spoke to Mr. Blackwell by phone again and asked why he had not been
paying his support. During this call, Mr. Blackwell stated that Ms. Allen had closed
the case. When the staff member advised him that Ms. Allen had reopened the case,
Mr. Blackwell got “very angry” and accused Virginia of being a “racist state.”
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VDCSE records show that Mr. Blackwell made no payments to the VDCSE after the
2016 call.
B. Disciplinary Proceedings
In October 2016, Ms. Allen filed a complaint with the Office of Disciplinary
Counsel, alleging that Mr. Blackwell had failed to make court-ordered child support
payments, was roughly $50,000 in arrears, and had failed to appear in court when
requested. Mr. Blackwell denied the allegations in response to the complaint,
stating, among other things, that he “never . . . willfully failed to make child support
payment pursuant to any court order.”
In February 2017, Disciplinary Counsel sent Mr. Blackwell questions, one of
which was the following: “You state that you never ‘willfully failed to make child
support payment pursuant to any court order.’ If you have not ‘willfully’ failed to
make court-ordered child support payments, do you agree that you failed, however,
to make the court ordered support payments.” In response, Mr. Blackwell wrote:
“No.”
Disciplinary Counsel instituted formal proceedings against Mr. Blackwell in
8
February 2020. As relevant here, the Specification of Charges alleged that Mr.
Blackwell had violated D.C. R. Prof. Conduct 3.4(c) by failing to comply with a
court order to make child support payments and D.C. R. Prof. Conduct 8.1(a) by
knowingly making a false statement to Disciplinary Counsel when he answered “no”
to the question whether he failed to make court-ordered child support payments. 2
Mr. Blackwell moved to dismiss the charges on two grounds relevant here.
First, he argued that the Rule 3.4(c) charge did not relate to his fitness to practice
law. The Ad Hoc Hearing Committee disagreed, concluding that Rule 3.4(c) can
apply to a lawyer’s conduct outside the context of client representation and
specifically to a lawyer’s failure to pay child support, and the Board concurred.
Second, Mr. Blackwell asserted that he had been prejudiced by the three-year
delay between the filing of Ms. Allen’s complaint and the Specification of Charges,
claiming the delay resulted in the loss of relevant evidence. As ordered by the
Maryland court in October 2009, Mr. Blackwell and Ms. Allen had maintained a
“visitation notebook” in which they were required to enter information and concerns
2
Mr. Blackwell was also charged with violating Rule 8.4(c), but the Board
did not uphold the charge and Disciplinary Counsel does not challenge that
determination.
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about D.B. for purposes of communicating with each other. At the Committee
hearing, Mr. Blackwell claimed that the notebook contained information about
payments that he had made directly to Ms. Allen; Ms. Allen testified that that was
“possible” but that she had lost the notebook in 2018. Mr. Blackwell argued that he
would not have been deprived of that evidence if the Specification of Charges had
been filed earlier. The Board agreed with the Ad Hoc Hearing Committee that Mr.
Blackwell had not shown a denial of due process, as required for dismissal, because
he could have obtained the notebook after Ms. Allen’s complaint but before the
notebook was lost and, in any event, payments recorded in the visitation notebook
would not have refuted the charges.
The Hearing Committee conducted an evidentiary hearing and concluded in a
Report and Recommendation that Mr. Blackwell’s failure to pay court-ordered child
support constituted a violation of D.C. R. Prof. Conduct 3.4(c) and his knowing false
statement to Disciplinary Counsel constituted a violation of D.C. R. Prof. Conduct
8.1(a).
The Board adopted the Hearing Committee’s findings of fact as supported by
substantial evidence in the record. The Board agreed with the Hearing Committee’s
conclusion that Disciplinary Counsel had proven by clear and convincing evidence
10
that Mr. Blackwell had violated D.C. R. Prof. Conduct 3.4(c) by failing to comply
with an order issued by the Maryland court in 2007 requiring him to make child
support payments to the MOCSE. The Board also agreed with the conclusion that
Mr. Blackwell had violated D.C. R. Prof. Conduct 8.1(a), finding that Mr. Blackwell
had known the response at issue was false when he provided it to Disciplinary
Counsel. The Board recommended a sanction of a six-month suspension with all
but 60 days stayed in favor of three years of probation, subject to the following
conditions:
(1) that [Mr. Blackwell] shall not violate any Rules of
Professional Conduct;
(2) that no later than 30 days after entry of the Court’s order,
[Mr. Blackwell] shall begin to make monthly payments
pursuant to a schedule and in an amount sufficient to fully
satisfy his child support obligations (including any current
arrearage) by the end of the probationary period . . . without
prejudice to [Mr. Blackwell] seeking a modification of his
child support obligations, in which case he must comply with
the modified order by the completion of the probationary
period[;] and
(3) that Mr. Blackwell shall provide Disciplinary Counsel with
the payment schedule, and every three months shall provide
Disciplinary Counsel with a statement from the VDCSE
showing his compliance with the payment schedule, or
evidence showing that he has made the payments required
under the schedule.
The Board recommended that, if Mr. Blackwell did not satisfy his child
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support obligations by the end of the probation period, he would need to serve the
stayed portion of the suspension and satisfy his child support obligations prior to
reinstatement.
II. Discussion
We “accept the findings of fact made by the Board unless they are
unsupported by substantial evidence of record, and [we] 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.” D.C. Bar
R. XI, § 9(h)(1). “Substantial evidence means enough evidence for a reasonable
mind to find sufficient to support the conclusion reached.” In re Evans, 902 A.2d
56, 70 (D.C. 2006) (per curiam) (internal quotation marks omitted). We review the
Board’s legal conclusions de novo. In re Samad, 51 A.3d 486, 495 (D.C. 2012) (per
curiam).
Before this court, Mr. Blackwell concedes that Rule 3.4(c) applies to an
attorney ordered, as a party and not an advocate, to make child support payments,
and that he therefore violated Rule 3.4(c) between 2007 and 2009; he simultaneously
asserts, however, that he substantially complied with his child support obligations
12
by directly paying Ms. Allen much of what he owed. Mr. Blackwell challenges the
conclusion that he violated Rule 8.1(a), arguing that the question Disciplinary
Counsel posed to him was ambiguous and that the Hearing Committee did not make
a finding as to his mental state when answering the question. Mr. Blackwell also
renews his argument that the charges should be dismissed or, in the alternative, that
the sanction should be reduced because of the three-year delay between Ms. Allen’s
complaint and the Specification of Charges. Finally, Mr. Blackwell challenges the
Board’s recommended sanction.
We assume that Mr. Blackwell violated Rule 3.4(c), agree with the Board that
he violated Rule 8.1(a), and conclude that he was not prejudiced by the delay in
prosecuting this matter. Finding the recommended six-month suspension with all
but 60 days stayed in favor of three years of probation within the range of acceptable
outcomes, we adopt it.
1. The Delay Between the Complaint and the Charges
Mr. Blackwell argues that Disciplinary Counsel’s delay in issuing the
Specification of Charges prejudiced him and thus warrants dismissal of the charges.
The basis for this argument is the loss of the “visitation notebook” that allegedly
13
contained information about payments Mr. Blackwell had made directly to Ms.
Allen after October 2009.
“[A]n undue delay in prosecution is not in itself a proper ground for dismissal
of charges of attorney misconduct.” In re Ekekwe-Kauffman, 210 A.3d 775, 785
(D.C. 2019) (per curiam) (internal quotation marks omitted). “Undue delay may
result in a due process violation, however, if the respondent demonstrates actual
prejudice—that is, that the delay in prosecution impaired [the respondent’s]
defense.” Id. (internal quotation marks omitted); see In re Klayman, 282 A.3d 584,
591 (D.C. 2022) (per curiam) (stating that “mere delay in the disciplinary process
generally does not provide a legitimate ground for dismissal of the complaint,
because the public interest in regulating members of the bar takes precedence over
the attorney’s interest in having claims speedily resolved” and that “undue delay
must be coupled with actual prejudice in order to justify dismissal”) (internal
quotation marks and brackets omitted).
Even assuming Disciplinary Counsel’s delay was undue or unreasonable, we
discern no due process violation in this case. There are two key problems with Mr.
Blackwell’s position. First, Mr. Blackwell has conceded that he violated Rule 3.4(c)
at least with respect to 2007 to 2009. Accordingly, even if the notebook would have
14
demonstrated that he made some payments to Ms. Allen after October 2009,
dismissal of the charge would not be an appropriate remedy.
Second, the evidentiary value of the notebook is unclear at best. The Board
found that, “even viewing the evidence in the light most favorable to [Mr.
Blackwell], [the notebook] shows at most that he made some payments directly to
Ms. Allen.” Mr. Blackwell has not argued that the visitation notebook would have
shown that he made any payments to Ms. Allen before October 2009, that he made
all of the payments required by court order, or that he made payments to the child
support agencies, as ordered.
We also note that the absence of records of any payments made during the
period at issue is not due solely to Disciplinary Counsel’s delay. Mr. Blackwell
admitted during oral argument that he made no record himself of any amounts he
paid Ms. Allen. And, as the Board noted, Mr. Blackwell “knew in 2016 that Ms.
Allen alleged that he had not made the required child support payments. If the
visitation notebook contained information to rebut that allegation, he could have
requested that Ms. Allen provide him with the notebook then, before it was lost in
2018.” See Klayman, 282 A.3d at 592 (“We note that Mr. Klayman was on notice
of the disciplinary complaint by 2011, and he therefore could have been expected to
15
retain any relevant documents until that matter was explicitly resolved.”); Ekekwe-
Kauffman, 210 A.3d at 786 (reasoning that respondent’s “claim that the delay caused
her to lose access to relevant witnesses and documents is unpersuasive in light of the
fact that she was aware of the potential for misconduct charges as early as May 21,
2008, when Disciplinary Counsel wrote to her requesting a written response to” the
complaint). Mr. Blackwell argues that the evidence demonstrates that the
contentious nature of his relationship with Ms. Allen would have rendered futile any
attempt to procure the notebook. If that is true, it underscores the point that, to the
extent Mr. Blackwell seeks to argue that he made payments to Ms. Allen, he failed
to document those payments himself in a secure manner.
Mr. Blackwell also argues that Disciplinary Counsel failed to comply with its
alleged duty under D.C. R. Prof. Conduct 3.8—which applies to a “prosecutor in a
criminal case”—to “not [i]ntentionally avoid pursuit of evidence or information
because it may damage [its] case” or “[i]ntentionally fail to disclose to the defense,
upon request at a time when use by the defense is reasonably feasible, any evidence
that the prosecutor knows or reasonably should know tends to negate the guilt of the
accused or to mitigate the offense.” D.C. R. Prof. Conduct 3.8(d) to (e). Mr.
Blackwell states that he requested production of the notebook and that Disciplinary
Counsel did not provide it, claiming that it did not know of the notebook’s existence.
16
Even assuming Disciplinary Counsel is subject to Rule 3.8(d), 3 the facts do
not support a violation of the Rule here. Mr. Blackwell did not raise the existence
of the notebook until after the investigation had been completed, and the Maryland
court order requiring use of the notebook said nothing about recording child support
payments. Accordingly, Disciplinary Counsel neither knew nor reasonably should
have known of the notebook’s existence or that it could negate or mitigate Mr.
Blackwell’s culpability under Rule 3.4(c).
In sum, we conclude that Mr. Blackwell has failed to show that the delay in
this case caused him substantial prejudice warranting dismissal or constituted a
violation by Disciplinary Counsel of Rule 3.8(d).
2. Rule 3.4(c) Violation
D.C. R. Prof. Conduct 3.4(c) provides that a “lawyer shall not . . . [k]nowingly
disobey an obligation under the rules of a tribunal except for an open refusal based
3
Bar disciplinary proceedings “are not criminal prosecutions in any sense.”
Brookens v. United States, 182 A.3d 123, 133 n.17 (D.C. 2018); see In re Williams,
513 A.2d 793, 796 (D.C. 1986) (per curiam) (“A disciplinary sanction differs from
a criminal conviction.”); see also In re Cleaver-Bascombe, 986 A.2d 1191, 1195
(D.C. 2010) (per curiam) (noting that the purpose of imposing attorney discipline is
not to punish).
17
on an assertion that no valid obligation exists.” We have not previously considered
whether the Rule applies to an attorney who violates a court rule in his or her
personal capacity as opposed to his or her representative capacity. Mr. Blackwell,
however, concedes that “Rule 3.4(c) applies to attorneys who are subject to child
support orders.” Accordingly, we assume for purposes of this matter that the Rule
applies.
The question remains whether the Hearing Committee’s and Board’s findings
that Mr. Blackwell failed to comply with a court order regarding child support
payments is supported by substantial evidence. Again, we turn to an express
concession by Mr. Blackwell: “Respondent admits that he violated Rule 3.4(c)
[from] 2007 to 2009 by making child support payments directly to Ms. Allen rather
than through the Maryland Office of Child Support Enforcement as required by the
Maryland child support order.” And, even putting aside Mr. Blackwell’s concession,
we find substantial evidence in the record to support the Hearing Committee’s and
Board’s findings that, at least from 2007 to 2009 (and, it appears, at least for
significant periods of time after 2009), Mr. Blackwell failed to comply with court
child support orders.
While conceding that he did not comply with a court order from 2007 to 2009,
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Mr. Blackwell maintains that he periodically paid Ms. Allen directly and argues that
Disciplinary Counsel therefore did not prove by clear and convincing evidence that
he failed to pay substantially what was owed. But Mr. Blackwell’s alleged efforts
to provide Ms. Allen with money outside of the child support system do not negate
his conceded non-compliance with court orders to make his payments through the
MOCSE. Moreover, Mr. Blackwell has not pointed to evidence in the record
regarding the amounts or dates of payments he made to Ms. Allen, and there is
substantial evidence in the record that, even if he had paid Ms. Allen directly, the
total of his payments was well below the amount he was required to pay by court
order. We accordingly assume based on his concession that Mr. Blackwell violated
D.C. R. Prof. Conduct 3.4(c) by knowingly disobeying a court-imposed obligation
to pay child support.
3. The Rule 8.1(a) Violation
D.C. R. Prof. Conduct 8.1(a) provides that a lawyer shall not knowingly make
a false statement of fact in connection with a disciplinary matter. Disciplinary
Counsel alleged that Mr. Blackwell violated the Rule when he answered “no” to the
question, “You state that you never ‘willfully failed to make child support payment
pursuant to any court order.’ If you have not ‘willfully’ failed to make court-ordered
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child support payments, do you agree that you have failed, however, to make the
court ordered support payments.” The Board agreed with the Hearing Committee’s
conclusion that this was a knowing false statement because Mr. Blackwell knew then
that he had failed to make a court-ordered child support payment on at least one
occasion.
There is substantial evidence in the record that, when Mr. Blackwell answered
the question, he knew that he had not made at least some court-ordered child support
payments. Mr. Blackwell argues, however, that, because the question was
“awkwardly phrased, unclear and ambiguous,” his response to it “cannot meet the
clear and convincing standard of proof as a matter of law.” Mr. Blackwell claims
that the Hearing Committee failed to consider his interpretation—that the question
was asking whether he had never paid child support—and erroneously applied its
own interpretation.
We agree with the Board that, while the question is hardly a model of clarity,
when read in its entirety and taken in the context of the proceedings and prior
exchanges between Mr. Blackwell and Disciplinary Counsel, the most reasonable
interpretation is that it was asking whether Mr. Blackwell agreed with the assertion
that he had failed to make at least some court-ordered child support payments.
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To establish a violation of Rule 8.1(a), Disciplinary Counsel was required to
prove that Mr. Blackwell knowingly made a false statement. Mr. Blackwell contends
that “the Committee failed to make factual findings regarding [his] actual state of
mind in the existing circumstances at the time he answered the question.” The Board
agreed with Mr. Blackwell that the Hearing Committee had not made factual
findings regarding his mental state when he answered Disciplinary Counsel’s
question. It nonetheless rejected Mr. Blackwell’s argument on the ground,
reasserted by Disciplinary Counsel before this court, that intent is an “ultimate fact”
that the Board could review de novo—and therefore could make findings about in
the first instance.
We need not decide here whether the Board was free to find in the first
instance, without any findings of subsidiary fact by the Hearing Committee, whether
Mr. Blackwell had possessed the requisite mental state for a Rule 8.1(a) violation.
See In re Krame, 284 A.3d 745, 755 (D.C. 2022) (even when determining “ultimate
facts,” such as intent, de novo, both the Board and this court must accept the hearing
committee’s credibility findings as determinations of subsidiary fact, so long as
substantial evidence in the record supports them and they are not infected by any
mistake of law); In re Klayman, 228 A.3d 713, 717 (D.C. 2020) (per curiam)
(“Whether a respondent gave sanctionable false testimony before the Hearing
21
Committee is a question of ultimate legal fact that the Board and this court review
de novo.”) (brackets omitted). In our view, contrary to that of the Board, the Hearing
Committee did make a finding of fact regarding Mr. Blackwell’s mental state when
he responded to the question at issue. The Hearing Committee found (with emphases
added): “Respondent knew [Disciplinary Counsel] was asking about the status of his
compliance with court-ordered support payments. But he dissembled his response
to [Disciplinary Counsel], despite his prior admission before the Maryland Court
that he had not complied with its order. The Committee concludes [that Disciplinary
Counsel] has established by clear and convincing evidence that Respondent
knowingly provided a negative answer to its question whether he had willfully failed
to pay child support as required by the court orders, and thus violated Rule 8.1(a).”
“Dissemble” means “to hide under a false appearance” or to “conceal facts,
intentions, or feelings under some pretense.” Dissemble, MERRIAM-WEBSTER.COM,
https://www.merriam-webster.com/dictionary/dissemble; https://perma.cc/9EDX-
T47K (last visited June 21, 2023). 4 A natural reading of the Hearing Committee’s
4
“Dissemble” is often used as a synonym of or in tandem with “lie.” See,
e.g., In re Silva, 29 A.3d 924, app. at 948 (D.C. 2011) (respondent’s “dishonesty
continued throughout the disciplinary process, where he either lied or dissembled,
acknowledging the truth only when forced to face it”); In re Cole, 967 A.2d 1264,
1267 (D.C. 2009) (“Neglect of a client matter, failure to communicate with a client,
dissembling or lying to a client, and causing parties and judicial tribunals to engage
in unnecessary work because of one’s failures all constitute abhorrent actions.”); In
re Scanio, 919 A.2d 1137, 1143 (D.C. 2007) (citing respondent’s “dissembling” in
22
finding, then, is that Mr. Blackwell “dissembled”—concealed facts under a
pretense—after having previously made a contrary admission and therefore
knowingly provided a false response. We see no basis in the record to disturb that
factual determination, and we are satisfied that it supports a conclusion that Mr.
Blackwell violated Rule 8.1(a).
4. Sanction
The Board’s recommended sanction comes to us with a “strong presumption
in favor of its imposition,” In re Hallmark, 831 A.2d 366, 371 (D.C. 2003), and “[i]f
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) (per curiam) (internal quotation marks omitted). The ultimate responsibility
of imposing sanctions, however, “rests with this court in the first instance.” In re
Godette, 919 A.2d 1157, 1164 (D.C. 2007) (internal quotation marks omitted). In
imposing the sanction, we must ensure that we do not “foster a tendency toward
inconsistent dispositions for comparable conduct” and that the sanction is not
“otherwise . . . unwarranted.” D.C. Bar R. XI, § 9(h)(1). “Where this court takes a
concluding that “respondent lied”).
23
significantly different view of the seriousness of an attorney’s conduct, the court
thus has not hesitated to reach its own conclusion as to the appropriate sanction.” In
re Baber, 106 A.3d 1072, 1076 (D.C. 2015) (per curiam).
In imposing professional discipline, we aim “not only to maintain the integrity
of the profession and to protect the public and the courts, but also to deter other
attorneys from engaging in similar misconduct.” In re Martin, 67 A.3d 1032, 1053
(D.C. 2013) (internal quotation marks omitted). “[T]he purpose of imposing a
sanction is not to punish the attorney.” In re Avery, 189 A.3d 715, 720 (D.C. 2018)
(per curiam) (internal quotation marks omitted). When determining the appropriate
disciplinary sanction, we evaluate “(1) the seriousness of the conduct, (2) prejudice
to the client, (3) whether the conduct involved dishonesty, (4) violation of other
disciplinary rules, (5) the attorney’s disciplinary history, (6) whether the attorney
has acknowledged his or her wrongful conduct, and (7) mitigating circumstances”
as non-exhaustive factors. Martin, 67 A.3d at 1053 (internal quotation marks
omitted).
In arriving at its recommendation, the Board carefully considered Mr.
Blackwell’s violations in light of the relevant factors that this court has identified.
The Hearing Committee also properly considered mitigating factors—that the
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underlying conduct did not involve dishonesty, that Mr. Blackwell has no prior
disciplinary violations, that Mr. Blackwell acknowledged his Rule 3.4(c) violation,
that Mr. Blackwell made some payments directly to Ms. Allen, and that Mr.
Blackwell sought to maintain a relationship with D.B. The Board cited those same
factors before reducing the Hearing Committee’s recommended period of
suspension.
We conclude that a six-month suspension with all but 60 days stayed in favor
of three years of probation is within the wide range of acceptable outcomes in this
case. Mr. Blackwell’s violations—disobeying court orders and making a false
statement to Disciplinary Counsel—are serious, and in this court Mr. Blackwell
continued to argue that he had not obfuscated the truth despite the clear indications
to the contrary. The six-month period of suspension and three-year period of
probation account for the seriousness of Mr. Blackwell’s conduct, while the stay of
all but 60 days and the absence of a fitness requirement reflect due consideration of
mitigating factors and the purposes of disciplinary sanctions.
To be sure, we have not previously imposed sanctions in these circumstances
and have few comparable cases for guidance. “Perfect consistency is not achievable
in this area,” In re Silva, 29 A.3d 924, 927 (D.C. 2011), however, because the
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“imposition of sanctions in bar discipline . . . is not an exact science but may depend
on the facts and circumstances of each particular proceeding,” In re Goffe, 641 A.2d
458, 463 (D.C. 1994) (per curiam). Ultimately, we are satisfied that the proposed
sanction is comparable to that imposed in analogous cases. See, e.g., In re Untalan,
174 A.3d 259, 259-60 (D.C. 2017) (per curiam) (six-month suspension with all but
60 days stayed in favor of one year of probation with conditions where attorney
ignored multiple court orders to file a brief in each of seven separate criminal or
juvenile appeals in which he had been appointed as counsel); In re Murdter, 131
A.3d 355, 356, 358 (D.C. 2016) (per curiam) (six-month suspension with all but 60
days stayed in favor of one year of probation with conditions where attorney failed
to file briefs in five separate appeals in which this court had appointed him to
represent convicted defendants and failed to respond to numerous court orders in
connection with the appeals).
Finally, Mr. Blackwell objects to the recommended conditions of probation,
arguing that this court should not require payment of arrears and in particular should
not require such payment to VDCSE. More specifically, Mr. Blackwell contends
that (a) such a requirement would illegally modify a Maryland court order and
offend due-process principles; and (b) the amount of arrears is in dispute and
resolution of that dispute may require litigation in court. We do not share Mr.
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Blackwell’s concerns. The conditions we adopt allow Mr. Blackwell to seek
modification of his child support obligations and permit proof of payment either
from VDCSE or through other evidence, which could include payment to Maryland.
III. Conclusion
For the foregoing reasons, Mr. Blackwell is suspended from the practice of
law in the District of Columbia for six months, with all but 60 days stayed in favor
of three years of probation, subject to the conditions recommended by the Board.
For purposes of reinstatement, Mr. Blackwell’s suspension will not begin to run until
he files an affidavit that fully complies with the requirements of D.C. Bar R. XI,
§ 14(g).
So ordered.