In re Robert S. Fastov

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-BG-850
IN RE ROBERT S. FASTOV, RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration 56333)
On Report and Recommendation of the
Board on Professional Responsibility
(BDN-105-07)
(Submitted May 13, 20141 Decided September 18, 2014)
Robert S. Fastov, pro se.
Julia L. Porter, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr.,
Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the
brief, for the Office of Bar Counsel.
Before THOMPSON and MCLEESE, Associate Judges, and KING, Senior
Judge.
THOMPSON, Associate Judge: In a Report issued on July 31, 2013, the Board
of Professional Responsibility (the “Board”) concluded that Respondent Robert
1
Oral argument was scheduled to take place in this case on April 17, 2014,
but did not occur because of an emergency. The court later determined that oral
argument would not assist in resolution of the case and that the case would be
submitted on the written record as of May 13, 2014.
2
Fastov violated Rules 3.1, 3.4 (c), 4.4 (a), and 8.4 (d) of the D.C. Rules of
Professional Conduct in filing and prosecuting a lawsuit against Christie‟s
International PLC et al. (the “Christie’s matter”), and also violated Rules 3.1, 4.4
(a), and 8.4 (d) in filing and prosecuting an unrelated lawsuit against the Palisades
Swimming Pool Association and certain members of its governing board (“the
Palisades matter”). The Board‟s conclusions were based on the factual findings
set out in a January 5, 2012, report of an Ad Hoc Hearing Committee (the “Hearing
Committee” or the “Committee”) and were largely in accord with the Committee‟s
legal conclusions. The Board adopted the Hearing Committee‟s recommendation
that Respondent be suspended from the practice of law for eighteen months and
that he be required to demonstrate his fitness to practice as a condition of
reinstatement. Respondent broadly attacks the Board‟s Report; Bar Counsel has
filed only limited exceptions to it. We find it unnecessary to address all of the
various issues raised by the parties, but conclude that the record and the law amply
support a conclusion that, through his conduct in one or both of the matters,
Respondent violated all of the foregoing Rules. We also adopt the recommended
sanction.
I. Background
3
A. The Christie’s Matter
The Hearing Committee found, and the Board accepted as “supported by
substantial record evidence,” the following. Respondent was admitted to the
District of Columbia Bar in December 1969. In 1985, he retired from his position
as Deputy Chief Counsel for an agency within the Department of Commerce.
Thereafter, he opened an art gallery and worked as an art dealer. At some point,
Respondent acquired a landscape painting that he believed was the work of 19th
century Austrian artist Emil Jakob Schindler (“the painting” or “the Schindler
painting”).2 In February 1993, he contacted Christie‟s London office in response
to an advertisement he had received from the firm about an auction of German and
Austrian art it planned for May of that year. In his letter to Christie‟s, Respondent
proposed to consign the painting to Christie‟s for the auction. He testified before
the Hearing Committee that, through telephone conversations, he and Wendy
Goldsmith of Christie‟s reached an oral consignment agreement under which
Christie‟s was required to offer the painting for sale as an “unqualifiedly authentic
Schindler painting” and was specifically prohibited from seeking an expert opinion
2
Respondent asserts that he acquired the painting as part of his private
collection, and not in his capacity as an art dealer.
4
as to the painting‟s authenticity.3 In March 1993, Respondent sent the Schindler
painting and two other paintings to Christie‟s and received in response a document
that acknowledged receipt of the paintings and set forth Christie‟s conditions of
sale, which reserved to Christie‟s “absolute discretion as to . . . whether the Lot is
suitable for sale by Christie‟s, and . . . whether the views of any expert shall be
obtained[,]” and provided that “Christie‟s reserves the right to withdraw any
property at any time before the actual sale if, in Christie‟s sole judgment . . . there
is doubt as to its attribution or to its authenticity[.]” Before returning the document
to Christie‟s, Respondent crossed out certain provisions, but, the Hearing
Committee found, “did nothing to indicate” that the terms quoted above did not
apply to the Schindler painting.
After Christie‟s received the painting in March 1993, a Christie‟s employee
consulted Dr. Gerbert Frӧdl, director of a prominent Austrian art museum, about
3
In a declaration submitted in the Christie’s litigation in April 2000,
Goldsmith averred that she did “not have authority from [Christie‟s] to waive
[Christie‟s] right to consult outside experts regarding works of art offered for
consignment[,]” “never agreed with anyone, including Mr. Fastov, to waive
[Christie‟s] rights in this respect[,]” and “did not consider [her]self to be entering
into a binding agreement to auction the Painting at that time[.]” Similarly, Mark
Politmore, a Christie‟s executive who reviewed the painting, submitted a
declaration in which he stated that “he [did] not know of any occasion when
[Christie‟s] ha[d] waived terms relating to use of experts or discretion in case of
authenticity questions.”
5
the painting. According to statements by Christie‟s staff, Dr. Frӧdl advised that he
could not render a definitive judgment as to the authenticity of the painting without
seeing the original. Goldsmith attested that she called Respondent and told him
that Christie‟s would not auction the painting because Dr. Frӧdl could not commit
to an opinion without seeing the original painting. In contrast, Respondent
testified that his understanding of what Goldsmith told him on or about April 1,
1993, was that Dr. Frӧdl had said that the painting was a “fake.” In March 1994
correspondence to Respondent, Dr. Frӧdl told Respondent that he had never
challenged the authenticity of the painting or called it a “fake.” At that point,
Respondent concluded that Christie‟s employees had been lying to him. That
conclusion was the backdrop for a 79-page letter that Respondent sent to a
Christie‟s executive in July 1994.
In the July 1994 letter, Respondent demanded that unless Christie‟s paid him
$168,000 for the painting, he would sue for damages in excess of $1 million. He
stated that he was “fully prepared to make a career of [the] lawsuit [he threatened],
and an extremely lucrative and psychologically gratifying one at that” and said that
once he was “in litigation mode,” he would have “every incentive . . . to maximize
. . . the pain to Christie‟s in court[.]” Although Respondent stated in the letter that
his intent was “pacific[,]” he also expressed the intent to secure “Christie‟s
6
unconditional surrender” and asserted that there was no way that Christie‟s could
“„spend‟ [him] out of this case.”
On March 21, 1997, Respondent filed a 225-page Verified Complaint
against Christie‟s in the United States District Court for the District of Columbia,
alleging “Continuing Fraudulent Misrepresentation and Concealment of Material
Facts”; “Continuing Negligent Misrepresentation and Concealment of Material
Facts”; “Unfair Trade Practices”; “Breach of the Oral Consignment Agreement and
Implied Duty of Good Faith and Fair Dealing”; “Negligence and Reckless
Conduct”; and “Intentional Infliction of Emotional Distress” (“IIED”), and seeking
compensatory and punitive damages totaling more than $7 million.
On May 1, 2000, Christie‟s moved for summary judgment, arguing that
Respondent‟s claims were barred by the statute of limitations and that he had failed
to establish any damages. In response, Respondent filed a 59-page opposition, to
which he attached a 90-page declaration, a 461-page statement of disputed and
undisputed facts, and three volumes, totaling more than 1500 pages, of exhibits.
District Court Judge Paul Friedman rebuked Respondent for submitting a filing
that did “the opposite” of “assisting the Court in rendering its decision” and that
constituted “an abuse of the litigation process.” The court cited Respondent‟s
7
“well-documented proclivity in this case to engage in obstructionist litigation
tactics at the expense of the Court[ and] opposing counsel[.]” Judge Friedman
ordered Respondent to re-file his opposition, subject to page limitations, and
ordered that in the future, Respondent would be personally fined and sanctioned
each time he abused the litigation process.
Thereafter, Respondent filed a 45-page memorandum in support of a motion
seeking leave to file a 25-page surreply. The memorandum was accompanied by
more than 40 additional pages of declarations, statements, transcripts, and other
materials, some of which contained additional argument. In an August 29, 2000,
order, Judge Friedman struck Respondent‟s motion from the record, calling the
filing “an abuse of the litigation process and a waste of the Court‟s time.” In a
subsequent order granting Respondent‟s amended motion for leave to file a
surreply, Judge Friedman cited Respondent‟s “tendency to skirt court orders by
submitting unreasonably voluminous filings[.]” Judge Friedman specified, inter
alia, that Respondent‟s memorandum was not to exceed twenty-five pages in
length and was to have its entire text other than footnotes “double-spaced and . . .
in twelve-point Times New Roman or Courier font.” The 25-page surreply that
Respondent filed thereafter, on January 19, 2001, “incorporate[d] by reference”
two other voluminous documents that he had previously filed with the court and
8
had margins that appeared to be set at or near the smallest width possible in most
word-processing programs. In addition, the vast majority of the text, including the
bulk of Respondent‟s substantive argument, was contained in fifty-seven footnotes
that were appended to the fewer than 210 lines of main text. Respondent attached
to the filing a declaration that exceeded the page limit set by the District Court and
that was accompanied by twenty-five exhibits, many of which contained additional
legal argument and one of which was itself comprised of eighteen other exhibits.
The Hearing Committee found that Respondent‟s “purported attempt to comply
with the literal letter of Judge Friedman‟s order demonstrate[d] [his] apparent
contempt for the rules of court.”
In 2005, the Christie’s matter was re-assigned to Judge William H. Stafford.
In February 2006, Judge Stafford granted Christie‟s summary judgment motion,
finding that Respondent‟s breach-of-contract and tort claims were time-barred by
the applicable three-year limitations periods, and that, even if the claims were not
time-barred, they would fail on the merits because (1) Respondent had failed to
submit any evidence of conduct that “would shock the conscience or exceed all
possible bounds of decency[,]” which was necessary to support an IIED claim; (2)
the D.C. Consumer Protection Procedures Act, D.C. Code §§ 28-3901-3908 (2012
Repl.) (“the Act” or the “DCCPPA”), was inapplicable to Christie‟s because there
9
was nothing to support Respondent‟s argument that the Act operated
extraterritorially; and (3) Respondent had failed to show that he suffered damages
as a result of any conduct by Christie‟s.4 Judge Stafford observed that
Respondent‟s “claims to damages defy all credulity” and “ma[d]e sense only when
viewed in the context of his open threats to achieve „Christie‟s unconditional
surrender.‟” Citing the threats contained in Respondent‟s 79-page letter to
Christie‟s, Judge Stafford found that Respondent‟s “unsupported, unmeritorious
claims . . . were . . . initiated in bad faith with the intent to subject Christie‟s to „the
worst and most costly‟ litigation in Christie‟s experience.”
Christie‟s filed a motion for attorneys‟ fees on April 6, 2006, arguing that
Respondent had initiated the litigation in bad faith and had engaged in vexatious
tactics. In his numerous and voluminous filings in response to Christie‟s motion,
Respondent employed the same practices with respect to footnotes, declarations,
and exhibits that Judge Friedman had criticized.5 For example, he filed a motion
4
Judge Stafford also observed that the record was “replete with evidence
that Goldsmith did not and could not enter into an agreement utterly at odds with
Christie‟s written Conditions of Business,” which Respondent “acknowledged and
accepted . . . when he signed and returned the written Receipt” to Christie‟s.
5
The Board noted that one of Respondent‟s filings was “so voluminous that
it could not be handled by the District Court‟s electronic filing system.”
10
seeking leave to file a 24-page surreply to Christie‟s nine-page reply to his
opposition to the attorneys‟ fees motion. Judge Stafford granted Christie‟s motion
for attorneys‟ fees in an order dated March 14, 2007, finding that:
[T]he record amply demonstrates that [Respondent] first
initiated, then prosecuted this lawsuit in bad faith for the
purpose of harassing Defendants. His egregious
behavior, which unreasonably and vexatiously multiplied
these proceedings, clearly warrants the imposition of
sanctions under [28 U.S.C.] section 1927 as well as under
the Court‟s inherent authority.
Judge Stafford cited Respondent‟s July 1994 letter to Christie‟s as evidence of his
improper motive and intent in filing the lawsuit, and cited Respondent‟s
unreasonably voluminous pleadings and his refusal to abide by the court‟s length
restrictions, even after being exposed to personal sanctions, as examples of his
abuse of the litigation process.6
6
Throughout subsequent proceedings relating to the order awarding
attorneys‟ fees, Respondent continued his practice of submitting numerous and
lengthy pleadings. For example, in response to the 13-page declaration that
Christie‟s submitted in support its claim for fees and costs, Respondent filed a 45-
page memorandum and a 48-page declaration that included eight attachments, one
of which was a 56-page document that discussed in detail the cases cited in the 45-
page memorandum. In January 2008, Magistrate Judge Alan Kay issued a report
and recommendation finding that Christie‟s request for $630,043.32 in fees and
expenses was reasonable and warranted under 28 U.S.C. § 1927, but
recommending that, in light of Respondent‟s finances, the court impose a sanction
of only $110,000. Christie‟s indicated its willingness to accept the reduced amount
“only if [Respondent] likewise accepts Judge Kay‟s Report and Recommendation
(continued…)
11
B. The Palisades Litigation
During June and July of 2004, the volunteer members of the governing
board of Palisades, a private non-profit corporation that operates a recreational
pool and tennis facility of which Respondent was a member, received complaints
about Respondent‟s behavior at the facility, which is located in Montgomery
County, Maryland. The numerous complaints alleged that Respondent interfered
with children‟s dive team practices and competitions, pushed young children aside
in the pool and used profanity around them, and made inappropriate and sexually
suggestive comments to pool patrons and staff members, some of whom were
teenagers. Upon receiving these complaints, Palisades President Jeffrey Bryan,
who was responsible for handling membership issues and dealing with complaints
from or about members and staff, consulted with other members of the governing
(…continued)
and does not seek to have it reduced.” Respondent did not accept Judge Kay‟s
recommendation and instead followed it with another spate of lengthy filings (e.g.,
a 45-page reply to Christie‟s four-page response to Magistrate Judge Kay‟s
recommendation, accompanied by a 14-page declaration that consisted mostly of
additional argument). Judge Stafford awarded Christie‟s the full amount of
$630,043.32 as a sanction for what he described as Respondent‟s “bad faith,
vexatious, and oppressive conduct in this case[,]” which he found Respondent had
continued to engage in even in submitting his objections to Magistrate Judge Kay‟s
report.
12
board and those who had witnessed or complained about Respondent‟s conduct
before deciding to approach Respondent privately to address concerns about
Respondent‟s behavior. On July 6, 2004, Bryan telephoned Respondent to discuss
his conduct, and directed him to refrain from further confrontational behavior
towards staff and members. One of the teenagers who had complained about
Respondent‟s behavior attested that on July 7, 2004, Respondent cornered her
above the edge of the pool and angrily berated her about her complaint until the
girl‟s parent‟s intervened. Several witnesses to the exchange corroborated the
teenager‟s account. Upon hearing of this confrontation, and after again consulting
with members of the Palisades Board, Bryan wrote to Respondent on July 13,
2004, admonishing that his offensive and abusive conduct would not be tolerated
and instructing:
You will refrain from any abusive language (threatening
or profane), physical intimidation or the creation of any
hostile airs toward any members of the Palisades
membership, including any of our kids, regardless of age.
. . . You are not to touch in any manner, for any reason,
any one other than one of your own family.
You will cease and desist in any behavior that is
perceived to be leering, sexually intimidating, or creating
a sexually hostile environment which serves to intimidate
and frighten our female members and staff. You are not
to touch in any manner, for any reason, anyone other than
a member of your own family.
13
The Hearing Committee found that the letter was “discussed only among the Board
members, and was sent to Respondent only[,]” and noted that Respondent admitted
during his hearing testimony that he had “no evidence that the letter was circulated
to anyone other than Palisades Board members” and, eventually, their counsel in
the litigation that ensued.
Respondent replied to this letter with a series of threatening communications
in which he demanded the names and contact information of any complainants and
witnesses and copies of any and all documents regarding complaints received
about his conduct. Respondent also demanded formal rescission of the July 13,
2004, letter, an apology from Bryan, and a payment of $250 (his “discounted
hourly rate[,]” he explained) for the time that he had spent writing letters to the
Board. Respondent threatened that, if his demands were not met, he would initiate
lengthy and ruinously expensive litigation, writing that he was a “retired, but very
experienced, tenacious, vigorous and successful litigator,” promising that he would
devote twenty-four hours a day to pursuing the matter, and stating that that he
would seek to humiliate and embarrass Board members, who would have to spend
hundreds of hours and tens of thousands of dollars defending themselves against
his claims. Respondent further threatened that he would file a separate “class
action suit on behalf of [him]self and all other members of Palisades seeking to
14
enjoin Palisades from paying for or otherwise indemnifying or subsidizing
[Bryan‟s] defense[.]”
In September 2004, Bryan sent Respondent a letter informing him that the
Board had decided not to pursue the matter any further. However, Respondent‟s
threats of litigation continued unabated. In one letter, Respondent threatened that,
in the course of the litigation he intended to initiate if his demands were not met,
he planned to take “50 to 60 depositions” including those of “you and each and
every Board Member and Employee of Palisades in 2004[,] [including] . . . the
pool manager and all of the many 2004 lifeguards, swim team instructors and dive
team instructors, and the kids who worked in the front office.” He threatened to
“break” the pool financially.
Respondent filed a complaint in the United States District Court for the
District of Maryland on June 29, 2005, asserting that the court had federal diversity
jurisdiction pursuant to 28 U.S.C. § 1332 (a)(1) (2006). Although Respondent,
himself a D.C. resident, named most of the Palisades Board Members as individual
defendants, he (with one inadvertent exception) omitted the names of Board
Members who resided in the District, acknowledging subsequently that he did so
15
intentionally7 and claiming that he did so under the belief that they were
“permissible defendants” and not “indispensible parties.” Respondent listed eleven
causes of action in his complaint, including “Breach of Contract And Implied
Obligation To Deal In Good Faith And Fairly With Plaintiff”; “Breach Of
Trustee‟s[] Obligation As A Fiduciary And Of A Confidential Relationship”;
“Negligence, Gross Negligence, Recklessness, Malicious And/Or Willful
Misconduct”; “Fraud, Deceit And Intentional Stonewall, Concealment And Cover-
Up Of Material Facts”; “Negligent Misrepresentation And Negligent Stonewall,
Cover-Up And Concealment of Material Facts”; “Violations Of The Maryland
Consumer Protection Act”; “Defamation By Libel And/Or Slander By Defendants
Bryan, Neudorfer, Other Palisades Officials And The John And Jane Doe
Defendants”; “Intentional Infliction Of Emotional Distress”; “Civil Conspiracy
(Joint Tortfeasor Liability)”; “Disgorgement And Repayment By Palisades
Officials Of Palisades Compensation Paid The Children Of Palisades Officials”;
and “Liability For Damages Of Defendants[,]” and sought compensatory damages
in the amount of $500,000 and punitive damages in the amount of $1 million.
7
The Hearing Committee found that Respondent “admitted that he
manufactured diversity[.]”
16
After the Palisades defendants filed a Motion to Dismiss or for Summary
Judgment, the court entered an order on January 31, 2006, in which it dismissed
Respondent‟s claims for lack of subject matter jurisdiction (no diversity of
citizenship), found that the D.C.-resident members of the Board were indispensable
parties, and observed that Respondent‟s claim that he believed diversity
jurisdiction did exist “defie[d] credulity.” The court also granted the defendants‟
motion for sanctions, finding that Respondent‟s “conduct in this suit and his
actions leading to this litigation violate the very text of [Fed. R. Civ. P.] 11.”
“Taken as a whole,” the court concluded, Respondent‟s “Complaint and
subsequent pleadings contain ample evidence that [Respondent] did not file this
suit [to] vindicate his rights, but to harass and retaliate against Defendants.”8
8
In his filings during subsequent attorney‟s fee proceedings, an appeal to
the Fourth Circuit, and a petition for rehearing and rehearing en banc, Respondent
cast aspersions on his opposing counsel and on the court, writing, inter alia, that
defendants‟ counsel was “slimy” and that the court was “bias[ed]” and that its
orders were “diatribe[s], impugning [Respondent‟s] integrity and judgment” and
“riddled with abuses of discretion[.]” He also continued his practice of submitting
lengthy filings (for example, responding to the Palisades defendants‟ seven-page
motion for attorney‟s fees with a 50-page opposition, a 79-page declaration that
contained additional argument, and a mostly single-spaced 56-page supplement
comprised entirely of legal argument. The Hearing Committee found that the
Palisades Board eventually agreed to withdraw its request for attorney‟s fees just to
get away from Respondent‟s “constant barrage of bullying[.]”
17
C. Proceedings before the Board of Professional Responsibility
On October 8, 2010, the Office of Bar Counsel issued a Specification of
Charges alleging that Respondent had violated five provisions of the D.C. Rules of
Professional Conduct in the course of litigating against Christie‟s and Palisades.
Bar Counsel charged that, with respect to the Christie’s litigation and Palisades
litigation, Respondent violated Rule 3.1 by pursuing frivolous claims and asserting
issues for which there was no basis; violated Rule 3.2 in Christie’s by seeking to
delay the proceedings when he knew or when it was obvious that such delays
would serve solely to harass or maliciously injure another; violated Rule 3.4 (c) in
Christie’s by knowingly disobeying an obligation under the rules of a tribunal;
violated Rule 4.4 in both Christie’s and Palisades by using litigation tactics that
had no substantial purpose other than to embarrass, delay, or burden a third person;
and violated Rule 8.4 (d) in both Christie’s and Palisades by engaging in conduct
that seriously interfered with the administration of justice.
Bar Counsel argued that the Hearing Committee should give preclusive
effect to Judge Stafford‟s March 14, 2007, order in Christie’s, in which Judge
Stafford found, as his basis for sanctioning Respondent pursuant to
28 U.S.C. § 1927 (2006), that the record “amply demonstrates that Plaintiff first
18
initiated, then prosecuted this lawsuit in bad faith for the purpose of harassing
Defendants” and that “[h]is egregious behavior . . . unreasonably and vexatiously
multiplied these proceedings[.]” The Hearing Committee, however, declined to
apply preclusive effect to Judge Stafford‟s findings, stating that it wished “to give
Respondent an opportunity in this forum to present evidence and argument on the
issue” and “wanted to . . . make up [its] own mind[] as to Respondent‟s conduct[.]”
Following a three-day hearing on March 15-17, 2011, the Hearing
Committee issued a 90-page Report and Recommendation on January 5, 2012, in
which it painstakingly reviewed the evidence and found that Bar Counsel had
proven all of its charges by clear and convincing evidence9 (although it did not
agree that Respondent had violated each of these rules in precisely the manner that
Bar Counsel had charged). The Hearing Committee recommended that
Respondent be suspended from the practice of law for eighteen months and be
required to demonstrate his fitness to practice law before being reinstated.
9
The Hearing Committee found, inter alia, that Respondent “may
reasonably have believed that he had a claim against Christie‟s,” but that he “used
the legal system not as a means of resolving legitimate disputes, but to punish
those with whom he had a disagreement[,]” and that he “used means intended to
increase the cost and burden of litigation” and “used the courts to mete out . . .
guaranteed retribution” against the people with whom he was angry. The
Committee further found that Respondent “pressed objectively meritless issues,
ignored court rules and orders, . . . and filed hundreds of pages of frivolous
pleadings.”
19
In a Report and Recommendation issued on July 31, 2013, the Board
adopted the Hearing Committee‟s findings of fact and most of its conclusions of
law. The Board found that the Committee had erred in declining to give preclusive
effect to the District Court‟s findings that supported the court‟s imposition of
sanctions in the Christie’s matter. The Board also concluded, however, that
regardless of the applicability of issue preclusion, Bar Counsel had established the
almost all of the charged Rule violations by clear and convincing evidence.
With respect to the Christie’s matter, the Board found that the criteria for
applying collateral estoppel were “fully satisfied” with respect to violations of
Rules 3.1 (a), 3.4 (c), 4.4 (a), and 8.4 (d). However, it went on to address whether
Bar Counsel had proven those and the other charged Rule violations by clear and
convincing evidence “in the event [this court] disagrees” with the application of
collateral estoppel. The Board concluded that Respondent violated Rule 3.1 by
pursuing his contract and related tort claims against Christie‟s “because he should
have known that his claims were time-barred”; by bringing his IIED claim, because
Christie‟s alleged conduct “did not come close” to being extreme or outrageous
and thus Respondent “could not have had a faint hope of succeeding on the
merits”; by bringing his DCCPPA claims, “because he was not selling the painting
20
as a consumer”; and by bringing his other claims when “he had no credible claim
that he had suffered any legally cognizable injury as a result of Christie‟s acts
forming the basis of these claims.”
The Board concluded that Respondent violated Rule 3.4 (c) with respect to
his January 19, 2001, surreply by misusing exhibits and attachments to evade
applicable page limits and by filing his 225-page initial complaint. The Board
further found that Respondent violated Rules 4.4 (a) and 8.4 (d) by “employing
litigation tactics that had no substantial purpose other than to harass, delay or
burden Christie‟s and that wasted the time and energy of the courts.” The Board
concluded, however, that Bar Counsel failed to establish that Respondent violated
Rule 3.2 because the evidence did not clearly show that Respondent‟s litigation
tactics “were . . . employed for the purpose of delay.”
With respect to the Palisades matter, the Board found that Bar Counsel
proved by clear and convincing evidence that (1) Respondent violated Rule 3.1 by
filing his tort and contract claims, all of which had no basis in fact or law; (2) that
Respondent violated Rule 4.4 in that he filed a (240-page) complaint that was
without any factual basis and was designed to “manufacture jurisdiction” and
thereafter filed voluminous pleadings for the sole purpose of harassing or
21
embarrassing the Palisades defendants; and (3) that he violated Rule 8.4 (d) by
using the judicial system to harass the Palisades Board.
The Board adopted the Hearing Committee‟s sanction recommendation. It
found that Respondent‟s inexcusable conduct in “us[ing] the legal system to vent
his personal pique at Christie‟s and Palisades rather than trying to vindicate a right
protected by law” warranted a severe sanction, especially in light of the Hearing
Committee‟s finding that Respondent had shown no remorse for his conduct.
II. The Instant Appeal
In his brief to this Court, Respondent broadly challenges the Board‟s Report,
contending that the Board, like the Hearing Committee, Bar Counsel, and the
federal courts, “almost totally ignored” his factual explanations and legal
arguments. Respondent also takes issue, at great length, with the Board‟s
application of collateral estoppel to find violations of Rules 3.1, 3.4 (c), 4.4 (a),
and 8.4 (d) in the Christie’s matter. In addition, Respondent asserts that the
recommended sanction is unsupported by law.
22
Bar Counsel defends the Board‟s application of collateral estoppel, but
asserts that Respondent‟s challenge to the Board‟s application of that doctrine is
ultimately “of no consequence” since the Board independently found “all the same
ethical violations based on clear and convincing record evidence.” Bar Counsel
argues that the Board‟s findings and conclusions were correct, with one exception:
The Board erred, Bar Counsel contends, in failing to adopt the Hearing
Committee‟s finding that Respondent‟s litigation tactics in Christie’s violated Rule
3.2 (a). Bar Counsel supports the Board‟s recommended sanction (but urges that
an enhanced sanction would be justified on the basis that Respondent gave false
testimony before the Hearing Committee about the details of his oral agreement
with Goldsmith and about his initial telephone call with Bryan10).
Our standard of review is well-established. This court, “like the Board itself,
must accept the factual findings of the Hearing Committee, unless they are not
supported by substantial evidence in the record[,]”11 In re Robinson, 74 A.3d 688,
10
As the Hearing Committee and Board made no findings about the
difficult issue of whether Respondent gave false (rather than mistaken) hearing
testimony, neither do we, since it will have no impact on our decision as to
sanctions and since, as Bar Counsel acknowledges, “the imposition of a fitness
requirement will serve to protect the public and the courts.”
11
In original discipline cases such as this one, “the hearing committee
conducts the hearings and makes factual findings and recommendations which it
(continued…)
23
694 (D.C. 2013), but we review questions of law de novo. In re Martin, 67 A.3d
1032, 1039 (D.C. 2013). We “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 Rule XI, § 9
(h)(1).
III. Analysis
A. Collateral Estoppel
We begin by briefly addressing Respondent‟s argument that the Board erred
by giving preclusive effect to the District‟s Court‟s findings in Christie’s, and
using those findings as a factual predicate to establish Respondent‟s violations of
Rules 3.1, 3.4 (c), 4.4 (a), and 8.4 (d) in the Christie’s matter (and Bar Counsel‟s
(…continued)
submits to the Board for review[.]” In re Temple, 629 A.2d 1203, 1208 (D.C.
1993). “[T]he Board has the power to make its own factual findings and forward
them to the court with a recommendation[,]” but “must accept the hearing
committee‟s factual findings if they are supported by substantial evidence on the
record as a whole.” Id. However, the Board “owes no deference to the hearing
committee‟s determination of „ultimate facts,‟ which are really conclusions of
law.” In re Micheel, 610 A.2d 231, 234 (D.C. 1992). Bar Counsel must establish a
Rule violation by clear and convincing evidence. See, e.g., In re Anderson, 778
A.2d 330, 335 (D.C. 2001).
24
argument that the Hearing Committee‟s failure to do so was erroneous). For
collateral estoppel to apply, it must be the case that “(1) the issue [was] actually
litigated and (2) determined by a valid, final judgment on the merits; (3) after a full
and fair opportunity for litigation by the parties or their privies; (4) under
circumstances where the determination was essential to the judgment, and not
merely dictum.” In re Wilde, 68 A.3d 749, 759 (D.C. 2013) (internal quotation
marks omitted). Further, to guard against the risk of unfairness, there must be a
consideration of “the fairness of applying collateral estoppel to the facts of the
case[,]” id. (internal quotation marks omitted), including a consideration of
whether “compelling circumstances make it appropriate that the party be permitted
to relitigate the issue.” Id. at 761 (internal quotation marks omitted).
Respondent contends that Judge Stafford‟s summary judgment ruling was
contrary to black letter law12 and argues that both the summary judgment ruling
that Respondent‟s claims against Christie‟s were “unsupported[ and]
unmeritorious,” and the “vengeance-driven” sanctions order that followed that
ruling, reflect Judge Stafford‟s “animus” against Respondent. Respondent asserts
12
Respondent asserts, for example, that summary judgment was
unwarranted because there was a factual dispute as to whether he and Christie‟s
had reached an oral consignment agreement whose terms were as Respondent
claimed.
25
that the animus was based on correspondence that Christie‟s sent to the court,
advising it of the sanctions that had been entered against Respondent by the
Palisades court, and also on Respondent‟s (post-summary judgment) request that
Judge Friedman re-assume jurisdiction of the case.13 Respondent further argues
that collateral estoppel could not fairly be applied in this case because Judge
Stafford refused him the opportunity for an evidentiary hearing at which the court
could assess the credibility of his claimed understanding of his dealings with
Christie‟s.14
13
Thus, Respondent suggests, the District Court did not consider with
impartiality his claim that he was “lulled” into not suing Christie‟s earlier, and
ignored case law (Williams v. Central Money Co., 974 F. Supp. 22, 27 (D.D.C.
1997)) recognizing the extraterritorial reach of the DCCPPA.
14
Cf. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31 (1979)
(“[A]nother situation where it might be unfair to apply offensive estoppel is where
the second action affords the defendant procedural opportunities unavailable in the
first action that could readily cause a different result.”). We note that, after hearing
Respondent‟s testimony, the Hearing Committee found that Respondent “believes
that he had an oral consignment agreement with Christie‟s” (but also found that
Respondent and Christie‟s “did not enter into such an agreement” and in particular
did not agree that Christie‟s would not seek an opinion on the authenticity of the
painting). The Board similarly stated that Respondent “believed . . . that Christie‟s
would take the consignment of the Schindler without seeking an outside opinion as
to its authenticity.” The Hearing Committee also found (contrary to Judge
Stafford‟s finding that Respondent‟s “claims to damages def[ied] all credulity”)
that Respondent may have incurred, as he claimed, about $3600 in costs to
“rehabilitate” his painting (but that the value of the painting did not suffer because
“whatever purportedly negative, but disavowed, statements had been made were
made only to Respondent”).
26
We agree with Bar Counsel that “[n]othing in the underlying court records . .
. suggests that the court[] adjudicated Respondent‟s claims on any basis other than
the evidence presented[.]”15 However, we decline to resolve Respondent‟s
unfairness claims point-by-point because (1) we agree with Bar Counsel that the
issue of collateral estoppel is ultimately of no consequence in this case since the
Board found independently that the record evidence showed clearly and
convincingly that Respondent violated each of the Rules cited in the Specification
of Charges; (2) Judge Stafford‟s findings did not correspond to all of the charged
Rule violations and thus, as the Board found, did not estop Respondent from
contesting certain of the charges; and (3) the (mostly documentary) evidence that
we must examine and that the Board had to examine to determine whether
collateral estoppel applied is co-extensive with the evidence that is relevant to an
original determination of whether Respondent violated the Rules through his
15
We also have no doubt that, to the extent that the court may have
overlooked whatever merit there was in Respondent‟s explanations and arguments,
it was, somewhat ironically, the unreasonable voluminousness of Respondent‟s
filings and their difficult-to-read format that were to blame for that circumstance.
In any event, the court, like the Hearing Committee and the Board, was not
required to adopt Respondent‟s version of events, and the court‟s findings could be
conclusive for collateral estoppel purposes even if they were somehow erroneous.
See K.H. v. R.H., 935 A.2d 328, 335 (D.C. 2007) (“The mere fact that a judgment
is erroneous does not deprive it of . . . conclusiveness[.]”).
27
conduct in the Christie’s matter. We therefore confine our review to the Board‟s
and Hearing Committee‟s findings and analysis with respect to the record evidence
and do not decide the matter of issue preclusion.16 Cf. In re Reback, 487 A.2d 235,
239 (D.C. 1985) (“We need not decide whether this argument is correct, because
the Board majority‟s alternative ground for finding a violation . . . is adequate to
support the Board‟s ruling.”), vacated on other grounds, 492 A.2d 267 (D.C.
1985); In re Lee, 755 A.2d 1034, 1036 n.4 (D.C. 2000) (“[W]e need not decide [the
issue] conclusively since it is not determinative of the result.”).
B. Respondent‟s Rule Violations
Following that course, and for the following reasons, we agree with the
Board that the record evidence established by clear and convincing evidence that
Respondent violated Rules 3.1, 3.4 (c), 4.4 (a), and 8.4 (d). We decline to address,
whether Respondent violated Rule 3.2 because resolution of that issue does not
affect our ultimate decision as to whether the recommended sanction is warranted.
1. Rule 3.1
16
This is notwithstanding our agreement with Bar Counsel that there are
“sound policy reasons” for applying collateral estoppel where appropriate in order
to “conserv[e] the resources of the disciplinary system[.]”
28
Rule 3.1 provides in relevant part that “[a] lawyer shall not bring or defend a
proceeding, or assert or controvert an issue therein, unless there is a basis in law
and fact for doing so that is not frivolous, which includes a good faith argument for
an extension, modification, or reversal of existing law.” We need discuss only the
Palisades matter to explain why we agree that Bar Counsel proved by clear and
convincing evidence that Respondent violated this Rule. Respondent admitted
during his testimony before the Hearing Committee that he put in his Palisades
complaint “everything but the kitchen sink” and that the legal descriptions he
attached to his claims were “very flexible” labels that he affixed to his account of
the underlying facts in order to find “a button[.]” As the Hearing Committee
found, Respondent “essentially conceded that this suit lacked any merit when he
testified that many of the claims in his Complaint were „levers‟ or „pressure points‟
intended to cause the Palisades Board to settle with him.”
The record supports the Board‟s and the Hearing Committee‟s finding that
Respondent had no colorable claim because “no one from Palisades did anything
even remotely actionable” that justified the filing of Respondent‟s complaint. As
the Hearing Committee found, the Palisades Board was not required to permit
Respondent to engage in abusive, bullying, or inappropriate conduct, and
29
Respondent presented no evidence that its actions, which the Hearing Committee
found were a “legitimate exercise of [the Board‟s] duties and obligations to ensure
the safety and well[-]being of its members[,]” caused him compensable harm.
There is no record evidence that Palisades ever defamed Respondent by accusing
him of having committed, in Respondent‟s words, “child molestation, pederasty,
pedophilia, or any other inappropriate sexual conduct . . . [or] battery or assault[,]”
or published to anyone any defamatory accusation, and the Board was justified in
rejecting Respondent‟s claim, which he repeats in his brief filed in this court, that
he reasonably interpreted Bryan‟s letter as leveling such accusations. Further, as
the Board and the Committee found, there was no evidence of a confidential
relationship between Respondent and Palisades that could support Respondent‟s
breach of fiduciary duty claim;17 no discernible basis for Respondent‟s negligence
claim; no evidence of fraud or misrepresentation;18 nothing to indicate that, with
respect to Palisades, Respondent was a consumer of services from a merchant such
17
Cf. Latty v. St. Joseph’s Soc’y of the Sacred Heart, 17 A.3d 155, 162-63
(Md. Ct. Spec. App. 2011).
18
Respondent claims that Bryan and the Palisades Board knowingly lied
when they asked him to direct to Bryan any requests for further information about
the complaints against him, as evidenced by Bryan‟s refusal to provide him with
contact information for everyone who had complained about his misconduct. But
the referral of questions to Bryan hardly created an obligation for Bryan to obey
any and all demands for information that Respondent might make, however
intrusive.
30
that he could have a claim arising under the Maryland Consumer Protection Act;
no extreme conduct to support an IIED claim; no underlying tort to support
Respondent‟s civil conspiracy claim; and no evidence of a Palisades rule or by-law
that prohibited the hiring of family members as pool staff that could have
supported Respondent‟s disgorgement claim.
The record supports the Hearing Committee‟s finding that Respondent sued
because he wanted to make miserable the lives of Palisades Board members who
had had the “temerity to tell him that his behavior was unacceptable,” not because
he had claims that he legitimately believed entitled him to relief under the law. In
addition, there was no basis in fact or law for Respondent‟s claim that the court
had diversity jurisdiction.
2. Rule 3.4 (c)
Rule 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 on an
assertion that no valid obligation exists[.]” Bar Counsel charged, and the Hearing
Committee and Board also found, that Respondent violated Rule 3.4 (c) in the
Christie’s matter by attaching argumentative exhibits to his memoranda in order to
31
evade the page limits set by the federal rules and (in his January 19, 2001,
surreply) by dramatically reducing the margins, presenting almost the entirety of
his argument in single-spaced footnotes, and attaching a declaration that exceeded
the length limit set by the court. Bar Counsel also charged that Respondent further
violated Rule 3.2 (c) by filing his 225-page (443-paragraph) complaint. Although
the Hearing Committee concluded that Bar Counsel had not proven that
Respondent knew that such a lengthy pleading was improper, the Board sustained
the charge, concluding that knowledge of the “short and plain statement” standard
embodied in Fed. R. Civ. P. 8 could be imputed to Respondent, who asserts that he
was a high-ranking litigator in the Department of Commerce and boasted of his
litigation experience.
We agree with the Board that, with respect to the charges based on
Respondent‟s evasion of court-imposed page limits through the use of
argumentative exhibits and attachments, the misuse of footnotes,19 and the
manipulation of page margins, the evidence of his violation of Rule 3.2 (c) is
overwhelming. We note that while Rule 3.4 provides that “open refusal” of court
19
Respondent‟s argument that his lengthy footnotes were “not barred or
limited by any court [r]ule” (emphasis omitted) misses the point that his lengthy
footnotes were obviously designed to evade Judge Friedman‟s order imposing a
page limit and requiring that the text be double-spaced.
32
orders does not constitute a violation of the Rule when “based on an assertion that
no valid obligation exists[,]” and while Respondent complained bitterly throughout
the antecedent litigation about the length requirements that the court attempted to
impose on his filings, his complaints did not relieve Respondent of his Rule 3.4
violations because the violations were not “open refusals,” but were undertaken
through evasive measures. We also agree with the Board‟s conclusion that
Respondent violated Rule 3.4 by knowingly failing to comply with the “short and
plain” standard for initial pleadings.20
3. Rule 4.4 (a)
Rule 4.4 (a) provides in pertinent part that, “[i]n representing a client, a
lawyer shall not use means that have no substantial purpose other than to
embarrass, . . . or burden a third person . . . .” We are satisfied that Bar Counsel
proved a violation of this Rule by clear and convincing evidence. In Palisades, the
evidence established that even after the Palisades Board notified Respondent that it
did not intend to pursue the complaints that it had made against him and that it
considered the matter closed, Respondent proceeded with litigation through which,
20
Respondent‟s explanation that he prepared the “lengthy” complaint he
filed as a “Quasi-Affidavit for Summary Judgment purposes” is entirely
unavailing.
33
he openly threatened, he would destroy Bryan‟s personal finances, business, and
reputation, would “break” the Palisades pool, and would harass Board members,
their families and children, and other pool employees. He acknowledged that he
included the disgorgement count in his complaint (relating to his allegations that it
was somehow improper for Board members‟ children to also work as pool staff) to
“cause Bryan‟s buzzer to go off” and to make him “collapse.” As to the Christie’s
matter, the record as a whole provides substantial support for the Board‟s and the
Hearing Committee‟s conclusion that Respondent engaged in discovery and
motions practice that was “entirely out of proportion to any reasonable dispute
between the parties and any colorable damage claim” and that was undertaken
“solely to make Christie‟s give up, in order to avoid Respondent‟s continued
onslaught of paper and the attendant expense”; and that Respondent litigated
against Christie‟s in a manner that was “designed to cause Christie‟s to incur
maximum costs” and that was “for no purpose other than to harass Christie‟s.”21
Although in each case Respondent was representing himself rather than another
client, we agree with the observation of a sister jurisdiction that “[t]he intent and
purpose of Rule 4.4 is served” by the “common sense” “construction that a lawyer
is representing a client when he represents himself[.]” Attorney Grievance
21
Thus, we reject Respondent‟s arguments about “egregiously erroneous,
inferred speculations concerning [his] bad faith intent to run up Christie‟s costs of
litigation.”
34
Comm’n of Maryland v. Alison, 565 A.2d 660, 668 (Md. 1989) (citing In re Segall,
509 N.E.2d 988, 990 (Ill. 1987) (an attorney who is himself a party to the litigation
represents himself within the meaning of the disciplinary rules)); see also In re
Pelkey, 962 A.2d 268, 280 (D.C. 2008) (finding a violation of Rule 4.4 (a) based
on conduct that Pelkey took while proceeding pro se).
4. Rule 8.4 (d)
Rule 8.4 (d) provides that it is professional misconduct for a lawyer to
“[e]ngage in conduct that seriously interferes with the administration of justice[.]”
The record makes plain that Respondent‟s meritless and voluminous filings wasted
the time and resources of the courts (requiring them, as the Board found, to “wade
through his verbose and repetitive pleadings”) and, particularly because of their
excessive single-spacing and excessive argument, unnecessarily burdened the
courts. Respondent argues that his tactics did not “taint the judicial process in
more than a de minimis way” because his filings were quickly and summarily
disposed of by the court. But to find a violation of Rule 8.4 does not require a
demonstration that the violator actually “cause[d] the court to malfunction or make
an incorrect decision.” In re Hopkins, 677 A.2d 55, 59 (D.C. 1996); In re
Uchendu, 812 A.2d 933, 941 (D.C. 2002). Rather, it is sufficient that the
35
respondent‟s conduct burdened the judicial system. In re Spikes, 881 A.2d 1118,
1127 (D.C. 2005). Respondent‟s voluminous, meritless, and difficult-to-read
filings did precisely that.
C. Sanctions
The imposition of bar discipline sanctions “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). Relevant considerations may include the nature
and seriousness of the misconduct; the prejudice, if any, to the client that has
resulted from the misconduct; whether the misconduct involved dishonesty or
misrepresentations; the presence or absence of violations of other ethical rules;
whether the lawyer has a history of prior discipline, and whether the lawyer has
acknowledged his wrongful conduct. Pelkey, 962 A.2d at 281. “Generally
speaking, if the Board‟s recommended sanction falls within the wide range of
acceptable outcomes, it will be adopted and imposed.” In re Austin, 858 A.2d 969,
975 (D.C. 2004).
Respondent disputes that any sanction should be imposed, noting that he has
“no intention, capacity or need to practice law for compensation in the future” and
36
citing his “health problems.” Bar Counsel initially sought a three-year suspension
in addition to a fitness requirement, but does not oppose the Board‟s recommended
sanction of an eighteen-month suspension and a fitness requirement. We conclude
that the Board‟s recommended sanction is justified. As described above, through
his conduct in the Christie’s and Palisades litigation, Respondent violated several
provisions of the Rules of Professional Conduct. Far from exhibiting remorse for
his egregious and repeated misconduct, Respondent has refused to acknowledge
that he has engaged in any wrongdoing. While Respondent has no prior
disciplinary history, this factor does not weigh heavily in his favor in light of his
representations that he has not been engaged in the practice of law for nearly three
decades, with the exceptions of his involvement in Christie’s and Palisades.
As we have observed many times, the sanction in a bar discipline case
should fall within the range of sanctions imposed in other cases involving similar
misconduct. In this respect, the sanction recommended by the Board is an
appropriate, mid-range sanction. See, e.g., In re Spikes, 881 A.2d 1118 (imposing
thirty-day suspension for the filing of a meritless defamation claim in retaliation
for the defendant‟s report of prior misconduct to Bar Counsel, conduct found to
violate Rules 3.1 and 8.4 (d)); In re Thyden, 877 A.2d 129 (D.C. 2005) (imposing
thirty-day suspension where the lawyer filed, and appealed the denial of, a motion
37
to dismiss a bankruptcy petition and an adversary proceeding, even though he
acknowledged a lack of standing, and then filed a subsequent adversary proceeding
making essentially the same claims, thereby burdening and delaying the underlying
bankruptcy petition); In re Shieh, 738 A.2d 814 (D.C. 1999) (reciprocal discipline
case in which this court declined to adopt the Board‟s recommendation of a two-
year suspension, and instead disbarred the lawyer, where the record showed that he
was found repeatedly to have filed and pursued “baseless, vexatious litigation” and
to have filed lawsuits solely to harass his opponents, and also revealed a history of
“frivolous motions (including for removal of cases to federal court and recusal of
judges), meritless appeals, and disobedience of court orders”); In re Orci, 974
A.2d 891 (D.C. 2009) ( disbarring lawyer who had “filed multiple frivolous claims
to harass and intimidate others[,]” “knowingly flouted court orders[,]” “engaged in
abusive litigation tactics[,]” and “seriously interfered with the administration of
justice[,]” but also had “engaged in fraudulent and dishonest conduct”); In re
Ditton, 980 A.2d 1170 (D.C. 2009) (imposing five-year suspension with fitness
requirement where the lawyer had exhibited “a long history of filing civil actions
against numerous and various defendants on grounds that are, at best, of
questionable merit”). The recommended fitness requirement is appropriate
because the record raises serious questions about Respondent‟s judgment and his
understanding of and regard for court rules and the Rules of Professional Conduct,
38
and “casts a serious doubt upon” his continuing fitness to be trusted with litigation
matters. See In re Cater, 887 A.2d 1, 24 (D.C. 2005) (approving the “serious
doubt” test) (internal quotation marks omitted); see also In re Chisholm, 679 A.2d
495, 505 (D.C. 1996) (citing attorney‟s “refusal to accept responsibility for his
actions” and his “lack of contrition” as reasons for requiring him to demonstrate
his fitness to practice as a precondition to reinstatement).
Respondent argues that the imposition of sanctions on him will accomplish
nothing since he has “not practice[d] law for compensation since December 1985”
and does not intend to resume practice, and since a suspension would not prevent
him from filing pro se claims against his adversaries. These points may be correct,
but an important purpose of discipline is “to maintain the integrity of the
profession and to . . . deter other attorneys from engaging in similar misconduct.”
In re Reback, 513 A.2d 226, 231 (D.C. 1986). We therefore adopt the
recommended sanction.
IV. Conclusion
For the foregoing reasons, Respondent is hereby suspended from the practice
of law in the District of Columbia for a period of eighteen months, commencing on
39
the date when he filed an affidavit in compliance with D.C. Bar R. XI, § 14 (g).
His reinstatement is conditioned upon a showing of fitness to resume the practice
of law, in accordance with D.C. Bar R. XI, § 16.
So ordered.