In re Soto ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-BG-0601
IN RE BENJAMIN M. SOTO, RESPONDENT.
A Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 453728)
On Report and Recommendation
of the Board on Professional Responsibility
(Disciplinary Docket No. 2015-D087)
(Board Docket No. 20-BD-057)
(Argued May 25, 2023 Decided August 3, 2023)
Peter R. Kolker, with whom Casey Trombley-Shapiro Jonas was on the brief,
for respondent.
Theodore (Jack) Metzler, Senior Assistant Disciplinary Counsel, for the
Office of Disciplinary Counsel. Hamilton P. Fox, III, Disciplinary Counsel, Julia
L. Porter, Deputy Disciplinary Counsel, Myles V. Lynk, Senior Assistant
Disciplinary Counsel, and Joseph C. Perry, Assistant Disciplinary Counsel, were on
the brief for the Office of Disciplinary Counsel.
Before ALIKHAN and SHANKER, Associate Judges, and FISHER, Senior Judge.
FISHER, Senior Judge: The Board on Professional Responsibility recommends
that we suspend respondent Benjamin M. Soto from the practice of law for six
months based on his conduct in a real estate transaction and the ensuing disciplinary
investigation. The Board found that Soto had violated D.C. R. Prof. Conduct 8.1(a),
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8.4(c), and 8.4(d). Soto takes exception to the finding that he violated Rule 8.1(a);
he also argues that a lesser sanction is appropriate in any event. Disciplinary Counsel
contends that a one-year suspension is warranted. We agree with the Board that Soto
violated all three Rules and, because a six-month suspension is within the range of
sanctions imposed for misconduct of this magnitude, we accept the Board’s
recommendation and suspend Soto for six months.
I. Background
Since 2002, Soto has owned and operated a real estate settlement company.
In 2012, William Duggan hired Soto’s company to help him obtain legal title to a
property located at 2461 18th Street NW (the Property) where Duggan operated a
bar and restaurant. Duggan wanted to use the Property as collateral for a bank loan
to his soon-to-be formed company—Lenjeswil, LLC—but he could not do so
because the Estate of Jack Littlejohn held title to the Property. This was a
complicated transaction that included preparation of a deed in lieu of foreclosure
because various loans made to Jack Littlejohn and secured by the Property had not
been repaid. Over time, the resulting defaulted notes changed hands on multiple
occasions. By the time Duggan sought to acquire title to the property, he asserted
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that he had purchased the right to collect the balances due on the outstanding loans.
The Littlejohn Estate was then reopened so that the Property could be transferred.
In December 2012, the Estate’s personal representative—Homer Littlejohn—
signed the deed and a related tax form. Homer’s attorney—Ara Washington—also
signed as a witness, and the signatures were notarized. Following his practice in
foreclosures of this type, Soto prepared a deed which stated that the Property was
being transferred from the Littlejohn Estate to Lenjeswil for “no consideration.”
The deed was not recorded at the time it was signed, however. When Duggan later
reviewed the documents, he angrily objected to the recital of “no consideration”
because (for complicated reasons we need not explain) it would increase the amount
of transfer and recordation taxes he would have to pay.
After consulting the D.C. tax code and speaking with the Recorder of Deeds,
Soto agreed with Duggan that the consideration figure could be changed. On
February 19, 2013, Soto directed his employee to change the amount of
consideration shown on the documents. To implement the change, a new first page
of the deed was created that revised the amount of consideration from “no
consideration” to $450,000 and removed all references to a substitute trustee (a third
party exercising the right to foreclose on the deed of trust who should have remained
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on the new deed for legal reasons). The original second page—containing the
notarized signatures of Homer Littlejohn and Ara Washington—was then attached
to the newly created first page. The second page of the tax form was also revised to
reflect the new amount of consideration and the recalculated (lower) amount of taxes
due. Soto did not obtain authorization from the signatories and the notary before
making these changes. 1
On April 3, 2013, the altered documents were recorded. Afterward, the
probate court requested a copy of the recorded deed in connection with the closing
of the Littlejohn Estate. Soto’s employee then sent attorney Washington a copy of
the recorded deed and tax form. Upon receipt, Washington noticed the discrepancies
between what she and Homer Littlejohn had signed and the now-recorded deed and
accompanying tax form.
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According to Duggan’s affidavit, Homer consented to the changes over the
phone and insisted on not wanting to return to Soto’s office. Duggan’s affidavit also
states that when he called Washington, she consented, provided that there was “no
financial impact on the estate.” Despite Duggan’s calls, the Board concluded that
Soto “admittedly did not notify Ms. Washington of these alterations before filing
them” and was “recklessly dishonest in that he consciously disregarded the risk that
the alterations to the Deed and FP 7/C tax form would prejudice Ms. Washington
and [Homer].”
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Washington confronted Soto about the changes and requested documentary
proof that Homer had received $450,000. Soto replied, “What discrepancy?” and
asked if she was joking about the proof of consideration. In January 2014, a probate
court auditor inquired about the consideration and why it had not been reported as
an asset of the estate since the Property had previously been reported as a loss.
Washington told the auditor that the recorded deed was not the deed that she and
Homer had signed. The auditor requested more information; this prompted
Washington and Homer to visit the Recorder’s Office to rectify the situation, but
Washington was told that there was nothing that she could do to change the recorded
deed.
Washington tried to contact Soto to correct the deed, but Soto did not respond.
The matter was referred to the Auditor-Master due to concerns about fraud in the
reopened estate. Washington and Homer were ordered to appear at a status hearing
where Washington testified that (1) neither Homer nor the estate was responsible for
the changes to the deed, (2) no one had received $450,000 in consideration, and
(3) court records for the estate showed a foreclosure on the property in March 1995.
Following the hearing, the Auditor-Master referred the matter to Disciplinary
Counsel “to investigate the recording of a deed.” In his introductory remarks, the
Auditor-Master explained that “[i]t appears from the record that Benjamin Soto,
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Esq., a member of the bar, either changed the language of a previously executed
deed, or caused it to be changed, in order to assist a grantee in paying less transfer
taxes.” The referral observed that “[i]f the deed was altered before it was filed, that
act appears to be a forgery as defined in D.C. Code § 22-3241(a)(1)(A) and (B).”
The Auditor-Master noted that he had not subpoenaed Mr. Soto, or anyone from his
firm, to appear.
On March 25, 2015, the Office of Disciplinary Counsel sent its initial inquiry
and copies of the Auditor-Master’s report and referral to Soto, asking him to
“provide a substantive, written response . . . to each allegation of misconduct.” On
May 15, 2015, Soto’s counsel responded by letter and Soto certified that his
counsel’s statements were true and correct to the best of his knowledge. Their
response sought to explain the changes to the deed, by which the Estate of Jack
Littlejohn granted the property to Lenjeswil LLC.
Soto’s response asserted that the “adjustment” to the deed “was a correction,
not a falsification” and “there was no fraudulent intent.” But the narrative implied
that Lenjeswil was both the lender and the buyer with regard to the Property: “The
lender was the grantee under the Deed and is also referred to herein as the ‘buyer.’”
Soto also stated that “the lender” had unsuccessfully tried to foreclose on the
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Property when Jack Littlejohn owned it and that “the lender did not record a
Substitute Trustee’s Deed transferring title to the lender following the foreclosure.”
Additionally, Soto explained that the $450,000 in consideration “was based on the
loan the buyer provided to the decedent” (Jack Littlejohn). Disciplinary Counsel
asserted that these statements were intentionally false and misleading because
Lenjeswil, which was created in 2012, neither foreclosed on the Property nor made
any loans to Jack.
Disciplinary Counsel charged Soto with violations of Rules 8.1(a), 8.1(b),
8.4(b), 8.4(c), and 8.4(d) based on the unauthorized alterations and his response to
the disciplinary inquiry. The Ad Hoc Hearing Committee found that Disciplinary
Counsel proved the violations of Rules 8.1(a), 8.4(c), and 8.4(d) by clear and
convincing evidence and recommended that Soto be suspended from the practice of
law for six months. The Board agreed that Soto violated Rules 8.1(a), 8.4(c), and
8.4(d) and accepted the Hearing Committee’s recommendation of a sanction.
II. Standard of Review
When reviewing the Board’s Report and Recommendation, we “shall accept
the findings of fact made by the Board unless they are unsupported by substantial
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evidence of record, and 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.” 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 Thompson, 583 A.2d 1006, 1008
(D.C. 1990) (per curiam). “[I]n considering the Board’s ‘findings of ultimate fact
or conclusions of law, we owe them no deference; our review is de novo.’” In re
Bailey, 283 A.3d 1199, 1205 (D.C. 2022) (quoting In re Yelverton, 105 A.3d 413,
420 (D.C. 2014)).
III. Discussion
Respondent Soto does not contest the findings that he violated Rules 8.4(c)
and 8.4(d) by altering the notarized documents. These rules provide that “[i]t is
professional misconduct for a lawyer to: . . . [e]ngage in conduct involving
dishonesty, fraud, deceit, or misrepresentation” or to “[e]ngage in conduct that
seriously interferes with the administration of justice.” D.C. R. Prof. Conduct
8.4(c)-(d). The Board found that Soto “violated Rule 8.4(c) when he directed the
alteration of the notarized documents and filed them as if they were the original.”
Additionally, the Board “agree[d] with the Hearing Committee that [Soto] was
dishonest in his dealings with Ms. Washington and Homer Littlejohn.” Moreover,
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there was clear and convincing evidence that Soto “seriously interfered [with] the
administration of justice when he changed the consideration amount[,] which
extended the probate proceedings and delayed the closing of the Littlejohn estate.”
Soto argues, however, that he did not violate Rule 8.1(a) because—despite
oversimplifying and omitting certain details of the transaction—his statement to
Disciplinary Counsel was not false or knowingly false. Soto further argues that a
six-month suspension is too harsh because (1) the Board based its recommendation
of that sanction partly on its finding of a Rule 8.1(a) violation (which he contests)
and (2) similar conduct in other cases has resulted in lesser sanctions. We first
address Soto’s exception to the finding of a Rule 8.1(a) violation and then address
the appropriate sanction.
A. The Rule 8.1(a) Violation
We agree with the Board’s conclusion that Soto violated Rule 8.1(a) because
he (1) knowingly made a false statement to Disciplinary Counsel and (2) omitted
critical details of a complex transaction to obscure his actions in altering the deed
and tax form. Rule 8.1(a) states that “a lawyer in connection with . . . a disciplinary
matter, shall not: [k]nowingly make a false statement of fact.” Comment 1 to Rule
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8.1 explains that “[l]ack of materiality does not excuse a knowingly false statement
of fact. . . . [I]t is a separate professional offense for a lawyer knowingly to make a
misrepresentation or omission in connection with a disciplinary investigation of the
lawyer’s own conduct.” D.C. R. Prof. Conduct 8.1 cmt.[1]. “Knowingly” means
“actual knowledge of the fact in question. A person’s knowledge may be inferred
from circumstances.” D.C. R. Prof. Conduct 1.0(f).
Soto’s 2015 response would lead a reasonable person to conclude that what
transpired was a simple real estate transaction between Lenjeswil (the lender and
buyer) and Jack Littlejohn. In reality, the transaction was complex and involved
multiple parties over an extended period of time. We need not repeat all of the
Hearing Committee’s and Board’s detailed factual findings. However, we recount
the following pertinent details to explain why we agree with the Board’s conclusion.
Before he died in 1993, Jack Littlejohn took out various loans against the
Property that were recorded in promissory notes and secured by separate deeds of
trust. After Jack defaulted, David Levin—who owned the defaulted notes at the
time—attempted to foreclose on the Property in 1995. Levin died before he could
complete the foreclosure, and his estate took ownership of the defaulted notes.
When Duggan learned that the Levin Estate would sell the defaulted notes, he asked
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his occasional business partner—Daniel Solomon—to purchase the notes through
Solomon’s company, Coles Farm Enterprises, LLC. In 1996, Coles Farm purchased
the notes. Duggan, through his entity 2461 Corporation, then executed a $350,000
promissory note to Coles Farm in exchange for control of the defaulted notes and
incidence of ownership of the building. Duggan assumed de facto ownership of the
Property, made periodic mortgage payments to Coles Farm, and paid real property
taxes owed to the District.
From 1996 to 2012, Coles Farm owned the defaulted notes but did not hold
legal title to the Property and could not convey title to Duggan or his entities. In
2003, Coles Farm unsuccessfully attempted to foreclose on the Property. The next
year, Coles Farm’s substitute trustee purchased the Property at a foreclosure auction
and executed a deed transferring the Property to Duggan’s wife in exchange for her
promise to pay $500,000. The deed was not recorded, however, and the Property
remained in Jack’s name although he had died in May 1993. After hiring Soto and
convincing Homer to reopen the Littlejohn Estate to transfer the title, Duggan
informally assigned 2461 Corporation’s interest in the Property to Lenjeswil—
which Duggan formed in November 2012.
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Soto asserts that his statements to Disciplinary Counsel were not false because
Duggan (or Lenjeswil) “stepped into the shoes” of the prior note holders, thus in
essence becoming “the lender.” But nothing in Soto’s response to Disciplinary
Counsel’s inquiry indicated as much. The Board found that Soto’s “statement
describing a simple loan that was forgiven between two parties falsely indicated the
identity of the actual parties to the transaction and suggested that the calculation of
the $450,000 consideration was straightforward, accurate and above reproach.”
Soto “knew his initial statement to Disciplinary Counsel in 2015 was false” because
he knew that Lenjeswil did not loan Jack money, did not attempt to foreclose on the
Property, and did not fail to record a substitute trustee’s deed.
Even if his statement was “technically true,” the Board found that it was
deliberately misleading for Soto to omit facts about other parties involved in the
transaction and their interests in the Property. See In re Krame, 284 A.3d 745, 758
(D.C. 2022) (“[T]echnical truths may still violate [Rules 3.3(a)(1) and 8.4(c)] where
they are intentionally misleading via omission.”); 2 see also In re Starnes, 829 A.2d
488, 490 n.2 (D.C. 2003) (per curiam) (upholding a finding of Rule 8.1(a) violation
2
The state of mind required to violate these rules is similar to the “knowingly
false” requirement of Rule 8.1(a). Rule 3.3(a)(1) provides that “[a] lawyer shall not
knowingly [m]ake a false statement of fact or law to a tribunal.” Rule 8.4(c) states
that “[i]t is professional misconduct for a lawyer to [e]ngage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.”
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and reasoning that “while Starnes claims that his admittedly misleading statements
to the Admissions Committee were inadvertent and immaterial, the Board had
sufficient evidence to conclude otherwise”).
Soto argues that the omitted information was not necessary to answer “the
central question” raised by the referral to Disciplinary Counsel: whether he
committed the crime of forgery. 3 However, as we have pointed out above, Comment
1 to Rule 8.1 explains that “[l]ack of materiality does not excuse a knowingly false
statement of fact.” Moreover, the Board disagreed that Soto’s omissions were
immaterial—at least with respect to understanding the calculation of the
consideration and resulting taxes. It found that Soto’s statement was deliberately
misleading because Soto “knew he was oversimplifying the title issues which
obfuscated his answer to Disciplinary Counsel’s inquiry.” In particular, the Board
found that Soto knowingly used the complexity of the transaction to obscure “his
3
Disciplinary Counsel charged Soto with violating Rule 8.4(b) by committing
the criminal act of forgery, but the Hearing Committee found that Disciplinary
Counsel did not prove this violation by clear and convincing evidence. The Hearing
Committee did find that Soto’s “filing of the altered documents without
Ms. Washington’s consent constitute[d] making, drawing, or uttering a forged
written instrument.” Nevertheless, the Hearing Committee “decline[d] to find that
[Soto] had an intent to defraud the D.C. government in light of the unusual preceding
16-year history of the [P]roperty at issue and [Soto]’s good faith belief that his
estimated amount of consideration and the reduction in taxes were appropriate.”
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actions[] to include the significance of removing the reference to Coles Farm’s
attempted foreclosure and continuing interest in the Property.”
Coles Farm’s attempted foreclosure may have been, as Soto puts it, “null and
void.” But that does not justify obscuring Coles Farm’s involvement, including the
$500,000 transaction between Coles Farm and Duggan’s wife. Soto’s deliberate
omissions concealed facts that would have aided Disciplinary Counsel in
determining whether the altered document was actually a deed in lieu of foreclosure,
whether the formula used for estimating the amount of consideration was proper,
and whether the resulting tax calculations were accurate. All of these matters were
within the scope of Disciplinary Counsel’s inquiry. Thus, because of Soto’s
knowingly false statements and deliberately misleading omissions, we agree with
the Board’s conclusion that Soto violated Rule 8.1(a). 4
4
The Hearing Committee’s finding that Disciplinary Counsel failed to prove
that Soto had an intent to defraud the D.C. government does not preclude our
conclusion that Soto knowingly made false statements and deliberately misled
Disciplinary Counsel. It is true that a Hearing Committee’s credibility findings
about a respondent’s state of mind can constrain our conclusion on the same ultimate
fact. See In re Krame, 284 A.3d at 754 (“[A]lthough a respondent’s state of mind
might be an ultimate fact that is reviewed de novo, a Hearing Committee’s credibility
findings can still constrain the determination of ultimate fact.”). But “it would be a
legal mistake to conclude, from that premise, that [Soto] did not violate” Rule 8.1(a).
Id. at 758. Although the Hearing Committee credited Soto’s testimony that he had
a “good faith belief that his estimated amount of consideration and the reduction in
taxes were appropriate,” “[t]hat credibility finding says nothing about whether
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B. An Appropriate Sanction
We now turn to determining the appropriate sanction. The Board
recommends a six-month suspension. Soto argues that we should “eliminate or
reduce the recommended period of suspension.” Disciplinary Counsel contends that
we should impose a one-year suspension. We accept the Board’s recommendation.
“The Board’s recommended sanction ‘comes to us with a strong presumption
in favor of its imposition.’” In re McClure, 144 A.3d 570, 572 (D.C. 2016) (per
curiam) (quoting In re Baber, 106 A.3d 1072, 1076 (D.C. 2015) (per curiam)).
“Generally speaking, if the Board’s recommended sanction falls within a wide range
of acceptable outcomes, it will be adopted and imposed.” In re Goffe, 641 A.2d 458,
463-64 (D.C. 1994) (per curiam). Ultimately, however, “the responsibility for
imposing sanctions rests with this court.” In re Temple, 629 A.2d 1203, 1207 (D.C.
1993). We base our determination of an appropriate sanction on several factors,
including: “(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
[Soto] knowingly,” id., made false statements and deliberately omitted information
in his response to Disciplinary Counsel years later.
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wrongful conduct, and (7) mitigating circumstances.” In re Martin, 67 A.3d 1032,
1053 (D.C. 2013). Additionally, “we necessarily compare the instant case with prior
cases in terms of the misconduct at issue.” In re Edwards, 870 A.2d 90, 94 (D.C.
2005).
The Board carefully considered Soto’s violations in light of these factors and
thoroughly explained why a six-month suspension was consistent with comparable
misconduct. The cases imposing lesser or greater sanctions cited by the parties—
several of which the Board already distinguished—do not persuade us that the
“Board’s sense of equity” and “exercise of judgment” was unreasonable.
In re Haupt, 422 A.2d 768, 771 (D.C. 1980) (per curiam). We agree with the Board
that Soto’s conduct is comparable to that in In re Reback, 513 A.2d 226 (D.C. 1986)
(en banc), and dissimilar to In re Powell, 898 A.2d 365 (D.C. 2006) (per curiam).
In Reback, we concluded that a six-month suspension was appropriate when
one of two lawyers, or a secretary acting at the lawyer’s direction, signed a client’s
name to a complaint and had it notarized by falsely representing that the signature
was genuine. 513 A.2d at 228, 233. The second lawyer filed the complaint, knowing
that the signature was false. Id. at 228. In imposing the suspension, we stressed the
seriousness of the lawyers’ misconduct and how it prejudiced the administration of
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justice. See id. at 231-32. Soto’s alterations of previously executed and notarized
documents is strikingly similar to the misconduct in Reback. And Soto’s actions,
which prolonged the probate proceedings and delayed the closing of the Littlejohn
Estate, similarly prejudiced the administration of justice.
It is true, as Disciplinary Counsel notes, that some factors from Reback are
not present here—namely, a lack of prior disciplinary history and the desire to avoid
inconsistent sanctions for two lawyers in the same case. See id. at 229-30. But these
differences do not alter our conclusion for two reasons. First, an attorney’s prior
disciplinary history—although highly relevant and material—should not “lead us to
impose a sanction that is disproportionate to the violation.” Id. at 231. We are
satisfied that the Board considered Soto’s public censure from nearly two decades
ago, see In re Soto, 840 A.2d 1291, 1291-92 (D.C. 2004) (per curiam), and arrived
at a proportionate sanction. Second, Reback’s concern for consistent sanctions
between two lawyers is not a meaningful distinction. Instead, it is an example of the
court’s responsibility to impose proportionate sanctions for “equally egregious” or
comparable misconduct. In re Reback, 513 A.2d at 230; see D.C. Bar R. XI,
§ 9(h)(1). Because we agree with the Board that Soto’s misconduct was comparable
to that in Reback, we see no reason to impose a greater sanction.
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Soto’s misconduct is also distinguishable from the misconduct in Powell, a
case on which Disciplinary Counsel relies. There we imposed a one-year suspension
with a fitness requirement for violations of the same rules that Soto violated. See In
re Powell, 898 A.2d at 365-66. Powell is markedly different, however. Not only
did Powell involve a criminal charge, the respondent also engaged in continuous and
repeated misconduct. While under an interim suspension for failing to report his
misdemeanor conviction to the D.C. Bar, the respondent failed to disclose his D.C.
Bar membership and his interim suspension in his sworn application for admission
to a federal district court. Id. Soto’s misconduct—though undeniably serious—does
not rise to the same level.
In the end, “comparisons between cases are inexact at best, and ‘every case
must turn on its own particular facts.’” In re Hutchinson, 534 A.2d 919, 926 (D.C.
1987) (quoting In re Hines, 482 A.2d 378, 386 (D.C. 1984)); see also In re
Schneider, 553 A.2d 206, 212 (D.C. 1989). Based on all the circumstances, we are
not persuaded that we should depart from the Board’s carefully explained
recommendation that Soto should be suspended for six-months.
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IV. Conclusion
Accordingly, respondent Benjamin Soto is suspended from the practice of law
in the District of Columbia for six months, effective thirty days from the entry of
this order. We direct Soto’s attention to the requirements of D.C. Bar R. XI, § 14,
and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16(c).
So ordered.