In Re Karen P. Cleaver-Bascombe ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-BG-1170
IN RE KAREN P. CLEAVER-BASCOMBE, PETITIONER.
A Disbarred Member of the Bar of the District of Columbia
(Bar Registration No. 458922)
On Report and Recommendation
of the Board on Professional Responsibility
(17-BD-35)
(Argued October 1, 2019 Decided November 27, 2019)
Karen P. Cleaver-Bascombe, pro se.
Joseph N. Bowman, Assistant Disciplinary Counsel, with whom Hamilton P.
Fox, III, Disciplinary Counsel, and Julia L. Porter and Jennifer P. Lyman, Senior
Assistant Disciplinary Counsel, were on the brief.
Before EASTERLY and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.
PER CURIAM: Petitioner Karen P. Cleaver-Bascombe was disbarred in 2010
for submitting a fraudulent voucher for services she knew that she had not rendered
and then giving knowingly false testimony before a Hearing Committee of the Board
on Professional Responsibility. In re Cleaver-Bascombe, 986 A.2d 1191, 1192-1201
(D.C. 2010) (per curiam). In 2017, Ms. Cleaver-Bascombe filed a petition for
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reinstatement. After holding an evidentiary hearing, a Hearing Committee
recommended that the petition should be denied. We agree.
I.
A petitioner seeking reinstatement must prove by clear and convincing
evidence
(a) [t]hat the attorney has the moral qualifications,
competency, and learning in law required for readmission;
and (b) [t]hat the resumption of the practice of law by the
attorney will not be detrimental to the integrity and
standing of the Bar, or to the administration of justice, or
subversive to the public interest.
D.C. Bar R. XI, § 16(d)(1). We consider the following factors in determining
whether a petitioner has made the required showings:
(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 the 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 Yum, 187 A.3d 1289, 1292 (D.C. 2018) (per curiam).
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We defer to a Hearing Committee’s determinations of “basic facts,” including
credibility determinations. In re Bailey, 883 A.2d 106, 115 (D.C. 2005) (per
curiam). Although the decision whether to grant a petition for reinstatement is
ultimately ours, we give great weight to the recommendations of the Board and the
Hearing Committee on that issue. In re Mba-Jonas, 118 A.3d 785, 787 (D.C. 2015)
(per curiam).
II.
The first reinstatement factor is the nature and circumstances of the conduct
for which Ms. Cleaver-Bascombe was disbarred. In re Yum, 187 A.3d at 1292.
Those circumstances were determined in the original disbarment proceedings, and
for the purpose of the current proceeding we do not understand Ms. Cleaver-
Bascombe to challenge the factual determinations underlying her disbarment. Those
factual determinations are reflected in this court’s opinion in In re Cleaver-
Bascombe, 986 A.2d at 1193-98. In sum, Ms. Cleaver-Bascombe was an attorney
appointed to represent indigent criminal defendants under the Criminal Justice Act.
Id. at 1193. This court upheld a finding that Ms. Cleaver-Bascombe fraudulently
submitted a voucher for services that she knew she had not rendered. Id. at 1193-
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95. This court also upheld a finding that Ms. Cleaver-Bascombe gave deliberately
false testimony to the Hearing Committee about the voucher. Id. at 1196-98.
Finally, this court noted the Hearing Committee’s conclusions that the testimony of
a witness called by Ms. Cleaver-Bascombe was evasive, non-responsive, and
contradicted by documentary evidence. Id. at 1197 n.8.
The court characterized Ms. Cleaver-Bascombe’s misconduct as “extremely
serious.” In re Cleaver-Bascombe, 986 A.2d at 1198 (internal quotation marks
omitted). As we explained,
Where an attorney has deliberately falsified a voucher and
sought compensation for work that he or she has not
performed, or for time that he or she has not devoted to the
case, that attorney’s fitness to practice is called into
serious question. This is especially true if the attorney has
compounded his or her initial fraud by testifying falsely
during the resulting disciplinary proceedings.
Id. at 1199 (internal quotation marks omitted); see also id. at 1200 (‘‘[L]ying under
oath on the part of an attorney for the purpose of attempting to cover-up previous
misconduct is absolutely intolerable . . . .”) (brackets, ellipses, and internal quotation
marks omitted). We therefore concluded that Ms. Cleaver-Bascombe had been
shown to “lack[] the moral fitness to remain a member of the legal profession,” and
we disbarred her. Id. at 1200-01.
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The following evidence concerning the remaining disbarment factors was
introduced at the reinstatement hearing. That evidence falls into several general
categories.
A. Inaccurate Bankruptcy Filings.
Ms. Cleaver-Bascombe filed for bankruptcy in 2012. On a form requiring her
to list transfers of property within the preceding two years, Ms. Cleaver-Bascombe
checked the box “None.” That was false, because Ms. Cleaver-Bascombe sold a
home about three weeks before filing for bankruptcy, deposited over $100,000 in
proceeds into her checking account, and then withdrew over $100,000 to pay for
expenses relating to a construction project in Jamaica. On the form at issue, Ms.
Cleaver-Bascombe “declare[d] under penalty of perjury that [she] read the answers
contained in the foregoing statement of financial affairs and any attachments thereto
and that they are true and correct.” On a different form filed with the bankruptcy
court, Ms. Cleaver-Bascombe indicated that she had $100 in her checking account,
when in fact she had nearly $10,000. Ms. Cleaver-Bascombe also declared under
penalty of perjury that she had read that form and that it was true and correct to the
best of her knowledge. When the accuracy of her filings was challenged at a hearing
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in the bankruptcy matter, Ms. Cleaver-Bascombe testified at the hearing that she had
read the documents at issue. Ms. Cleaver-Bascombe subsequently withdrew the
bankruptcy petition.
When questioned about this incident before the Hearing Committee, Ms.
Cleaver-Bascombe initially testified that she did not read the bankruptcy petition “at
all.” On further questioning, however, Ms. Cleaver-Bascombe testified instead that
she had not read the petition “carefully.” Ms. Cleaver-Bascombe testified that the
bankruptcy filings were not intentionally false, but rather contained inadvertent
inaccuracies because they were filed in haste to avoid foreclosure and because Ms.
Cleaver-Bascombe was having personal problems.
B. Personal Use of Government-Issued Cell Phone.
While working for the United States Department of Agriculture, Ms. Cleaver-
Bascombe incurred charges of approximately $600 making personal calls on a
government-issued cell phone. There were disputes before the Hearing Committee
about precisely when that happened, whether that conduct was contrary to the
policies in effect at the time, and whether Ms. Cleaver-Bascombe should have
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known that her conduct was impermissible. Ms. Cleaver-Bascombe claimed to have
repaid the government.
C. Recognition of Seriousness of Misconduct.
At a hearing in the bankruptcy case, Ms. Cleaver-Bascombe was asked what
led to her disbarment, and she responded that she had submitted a voucher that had
“maybe 30 or so entries of which two or so fees couldn’t be substantiated.”
During the reinstatement hearing, Ms. Cleaver-Bascombe repeatedly
described her original conduct as inadequate, deficient, or shoddy recordkeeping,
and she initially denied having committed perjury before the Hearing Committee in
the original proceeding. Under cross-examination, Ms. Cleaver-Bascombe
acknowledged that she had knowingly made a false representation on a voucher and
eventually acknowledged having committed perjury before the Hearing Committee
in the original proceeding. Ms. Cleaver-Bascombe initially denied that she had
known that the witness she called at the original disciplinary hearing was going to
lie, but she later acknowledged that that witness’s testimony was part of a “cover-
up.”
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D. Present Character and Competence.
Ms. Cleaver-Bascombe called three attorneys who testified that Ms. Cleaver-
Bascombe was remorseful for her original misconduct, was of good character, and
was a very capable attorney. On cross-examination, however, those witnesses
acknowledged that they were not familiar with the details of Ms. Cleaver-
Bascombe’s original misconduct and/or were not aware of Ms. Cleaver-Bascombe’s
false bankruptcy filings.
Ms. Cleaver-Bascombe introduced evidence that she had taken fifteen
continuing legal education (CLE) courses since her disbarment. She also introduced
evidence that she was certified as a mediator in Jamaica and was teaching at the
University of Technology in Jamaica.
III.
The Hearing Committee recommends that Ms. Cleaver-Bascombe’s petition
for reinstatement should be denied. In support of that recommendation, the Hearing
Committee analyzed the five reinstatement factors as follows.
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First, Ms. Cleaver-Bascombe’s original misconduct was “exceedingly
serious.”
Second, Ms. Cleaver-Bascombe’s conduct during her period of disbarment
included conduct “bearing a striking resemblance to that for which she was disbarred
-- namely submitting false information on court forms for financial gain.”
Specifically, the Committee did not credit Ms. Cleaver-Bascombe’s testimony at the
reinstatement hearing that she had not read the bankruptcy forms, and the committee
concluded instead that Ms. Cleaver-Bascombe dishonestly failed to disclose
information on the bankruptcy forms. The Hearing Committee also found that Ms.
Cleaver-Bascombe had acted improperly with respect to her use of a government-
issued cell-phone. We need not address the latter incident, however, because it does
not affect our conclusion as to the proper disposition of this matter.
Third, Ms. Cleaver-Bascombe minimized her original misconduct, both
during the bankruptcy hearing in 2012 and at the reinstatement hearing in 2018.
Although Ms. Cleaver-Bascombe offered witnesses in support of her contention that
she understood the seriousness of her original misconduct, those witnesses did not
persuade the Hearing Committee, particularly given that two of them were not
familiar with details of Ms. Cleaver-Bascombe’s misconduct.
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Fourth, for essentially the reasons already stated, the Hearing Committee was
not persuaded that Ms. Cleaver-Bascombe had shown that the character traits that
led to her disbarment no longer exist.
Fifth, the Hearing Committee was not convinced that Ms. Cleaver-Bascombe
had demonstrated current competence to practice law. The Hearing Committee
explained that only three of Ms. Cleaver-Bascombe’s CLE courses related to
keeping abreast of legal developments, with the rest having related to Ms. Cleaver-
Bascombe’s prior position as a non-lawyer investigator for the Department of
Agriculture. The Hearing Committee also noted that Ms. Cleaver-Bascombe had
not introduced evidence about the competence of her work as a mediator and teacher
in Jamaica. Finally, the Hearing Committee found “vague and unconvincing” the
testimony of one of Ms. Cleaver-Bascombe’s witnesses as to Ms. Cleaver-
Bascombe’s efforts to keep abreast of legal developments.
IV.
With the exception of the incident involving the personal use of a government-
issued cell phone, on which we need not and do not rely, we fully agree with the
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Hearing Committee’s analysis and recommendation. We are not persuaded by Ms.
Cleaver-Bascombe’s arguments to the contrary.
First, Ms. Cleaver-Bascombe argues that the Hearing Committee’s
recommendation is “incorrectly based on [her] past acts.” To the contrary, the first
reinstatement factor is “the nature and circumstances of the misconduct for which
the attorney was disciplined.” In re Yum, 187 A.3d at 1292. The Hearing Committee
thus quite appropriately placed substantial weight on the nature and gravity of Ms.
Cleaver-Bascombe’s original misconduct.
Second, Ms. Cleaver-Bascombe in essence challenges the Hearing
Committee’s factual conclusions in various respects. For example, Ms. Cleaver-
Bascombe argues that the inaccuracies in her bankruptcy filings were the result of
innocent error, not dishonesty. We see no basis to look behind the contrary factual
determinations of the Hearing Committee on this point or the other points raised by
Ms. Cleaver-Bascombe. See, e.g., In re Tun, 195 A.3d 65, 72-73 (D.C. 2018) (“We
are required to defer to Hearing Committee credibility findings if they are supported
by substantial evidence on the record.”; “[D]eference to the Hearing Committee’s
factual findings and credibility determinations is especially heightened where the
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determinations are based on direct observation of the respondent.”) (citation,
brackets, and internal quotation marks omitted).
Third, Ms. Cleaver-Bascombe argues that the Hearing Committee’s concerns
about Ms. Cleaver-Bascombe’s conduct relate to incidents -- such as the bankruptcy
filing -- that were “remote in time.” We do not agree that the false bankruptcy filing
in 2012 was unduly remote in time to be given weight in assessing Ms. Cleaver-
Bascombe’s reinstatement petition. Moreover, the Hearing Committee also focused
on concerns that were more temporally proximate, such as Ms. Cleaver Bascombe’s
failure, even as of the reinstatement hearing in 2018, to accept full responsibility for
her original misconduct.
Finally, Ms. Cleaver-Bascombe argues that the Hearing Committee did not
adequately consider her testimony, and that of her witnesses, that she was
remorseful, of good character, and competent to practice law. We disagree. The
Hearing Committee reasonably explained the limitations of that evidence. Here too
we see no reason to look behind the reasoning and recommendation of the Hearing
Committee.
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For these reasons, we adopt the recommendation of the Hearing Committee,
and we deny Ms. Cleaver-Bascombe’s petition for reinstatement.
So ordered.