In re Michael L. Avery

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-BG-0877

IN RE MICHAEL L. AVERY, SR. 08/2/2018

A Member of the Bar of the

District of Columbia Court of Appeals

(Bar Registration No. 447083)

On Report and Recommendation of the

Board on Professional Responsibility

(DDN-354-06)

(Argued June 27, 2018 Decided August 2, 2018)

Michael L. Avery, Sr., pro se.

Julia L. Porter, Senior Assistant Disciplinary Counsel, with whom Hamilton

P. Fox, III, Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant

Disciplinary Counsel, were on the brief, for respondent

Before GLICKMAN, THOMPSON, and EASTERLY, Associate Judges.

PER CURIAM: An Ad Hoc Hearing Committee (the “Hearing Committee” or

the “Committee”) recommended that respondent Michael Avery be suspended for

forty-five days for violations of several District of Columbia Rules of Professional

Conduct in connection with his representation of a client, Mary Brown, in 2004

and 2005. The Board on Professional Responsibility (the “Board”) recommended

a forty-five-day suspension stayed in favor of six months of probation.

2

Respondent states that he disagrees with some of the Hearing Committee‟s and

Board‟s findings, but he does not ask us to overturn any, and he takes no exception

to the Board‟s recommended sanction. Disciplinary Counsel does not take

exception to a forty-five-day suspension (although characterizing it as “particularly

lenient”), but argues that respondent should be required to serve an actual

suspension. Agreeing with the Board that this case is “most similar to those in

which sixty-day suspensions were imposed” and acknowledging the assessment by

the D.C. Bar Practice Management Advisory Service that respondent has made

changes in his practice that “make an occurrence like that which gave rise to the

bar complaint in 2004 very unlikely,” but also concurring with Disciplinary

Counsel that an actual period of suspension is warranted as a deterrent, we

conclude that a sixty-day suspension, with thirty days stayed in favor of a one-year

period of probation, is the appropriate sanction.

I.

Respondent‟s law firm had a high-volume personal injury practice. Ms.

Brown was injured in an automobile accident in November 2004. On November

10, 2004, she met with Adam Katzen, who was the only other attorney at the law

3

firm, and thereafter signed a retainer agreement to have respondent represent her in

connection with her claim for damages arising out of the accident.

Respondent sent a letter to Ms. Brown dated January 25, 2005, advising her

of the insurance settlement process. Thereafter, respondent did not himself handle

Ms. Brown‟s claim but instead assigned it to Dawn Seegars, a paralegal in his

office. On the same day, without waiting for further documentation from Ms.

Brown, Ms. Seegars wrote GEICO, the responsible insurer, a “demand for

settlement” and included a “specials” (i.e., special damages) package of medical

bills totaling $2507. In March 2005, Ms. Brown provided her employment records

to the law firm in support of her claim for lost wages, and in April 2005, Ms.

Brown signed a lien for medical services provided to her by Kaiser Permanente

and signed a release authorizing Kaiser to send her records to respondent. In June

2005, Kaiser notified respondent of the dollar amount of the lien. A month later, in

July of 2005, Ms. Seegars sent GEICO a second settlement demand, indicating a

“special damages” amount that did not include the full amount of the Kaiser-

Permanente lien and omitting any claim for lost wages, hospital emergency room

expenses, and damages for pain and suffering. The Hearing Committee found that

no one at the law firm had discussed the settlement demand with Ms. Brown, and

that she was not sent a copy of the letter.

4

On July 28, 2005, a GEICO claims examiner called Ms. Seegars to discuss

settlement negotiations. During the phone call Ms. Seegars made a demand for

$10,000, the claims examiner countered at $8800, and Ms. Seegars immediately

accepted that settlement offer. The same day, the claims examiner sent respondent

written confirmation of the settlement of Ms. Brown‟s claims along with a check

for the agreed upon settlement amount. Once the check arrived, respondent‟s

office manager endorsed Ms. Brown‟s name on the check (pursuant to the power-

of-attorney provisions in the retainer agreement) and had it deposited in

respondent‟s IOLTA account. The Hearing Committee found that “neither

[r]espondent nor Ms. Seegars obtained Ms. Brown‟s consent to the July 28, 2005

settlement offer before it was accepted by Ms. Seegars.” The Committee further

found that Ms. Brown did not receive notice of the settlement, despite her many

efforts to contact the law firm, until March 14, 2006, when Mr. Katzen called her.

The Committee found that when Ms. Brown was informed of the settlement offer,

she was “very upset” and told Mr. Katzen that the settlement amount was

unacceptable, that she had never approved the settlement, and that she wanted the

settlement check returned to GEICO and a lawsuit filed to recover her damages

from the accident.

5

When Ms. Brown contacted the law firm on September 12, 2006, she was

told that the firm “was „in the process‟ of sending the check back.” Respondent

finally met with Ms. Brown for the first time on September 19, 2006, at which time

he attempted to persuade her to accept the settlement amount. She did not do so,

and this time she instructed respondent not to file a suit on her behalf. On

September 25, 2006, she filed a complaint against respondent with the Office of

Disciplinary Counsel. On October 10, 2006, respondent returned the settlement

amount to GEICO, explaining, as reflected in telephone call notes made by a

GEICO representative, that the money was being returned because “a paralegal

(who no longer works for him) said M[s]. Brown had accepted the settlement when

she had not. Therefore[,] Ms. Brown rejected the settlement and instructed the

att[orney] to send the money back.” Respondent told the Hearing Committee that

this explanation to GEICO was not a true explanation, and that he “kn[e]w” (based

on the policies of his office but not based on personal knowledge) that the case

would not have been settled without authority from Ms. Brown.

The Hearing Committee found by clear and convincing evidence that

respondent violated Rules 1.1 (a) (competence) and 1.1 (b) (skill and care) by

“delegat[ing] day-to-day responsibility for Ms. Brown‟s case to his staff without

maintaining familiarity with the matter and [without] proper oversight.” The

6

Committee found that respondent was “disengaged” from the matter and

“abdicated responsibility for his representation of his client,” thereby failing to

discover that his office had not “conduct[ed an] adequate investigation of Ms.

Brown‟s injuries,” had not considered whether to obtain medical reports “to

determine the precise nature of her injuries,” had not conveyed GEICO settlement

offers to her, had not consulted with her before agreeing to a settlement, had

deposited the GEICO check without obtaining a signed release from her, and had

failed to notify her of the check and to send her a settlement disbursement sheet.

The Committee next found that respondent violated Rules 1.2 (a) (abiding

by client‟s decisions), 1.4 (a) (duty to keep client reasonably informed), 1.4 (b)

(duty to explain a matter to the extent reasonably necessary to permit the client to

make informed decisions), and 1.4 (c) (failing to promptly notify client of

settlement offer) by failing to communicate settlement offers to the client,

accepting a settlement offer without her consent, failing (until after she had filed a

disciplinary complaint) to comply with her instructions to rescind the settlement

and return the settlement amount to the insurance company, filing a lawsuit on her

behalf contrary to her instructions and without her knowledge,1 and failing to

1

The Hearing Committee found that respondent notified Ms. Brown by

letter that he intended to file a lawsuit on her behalf because the statutory

(continued…)

7

communicate meaningfully with her (including by failing to explain to her the

strengths and weaknesses of her case and to advise her of important

developments).

The Committee found that respondent violated Rules 1.3 (a) (diligence and

zeal) and 1.3 (c) (reasonable promptness) by failing to represent Ms. Brown

diligently and to act with reasonable promptness (in the matters described above)

and also by failing to compile a comprehensive list of damages, failing to timely

return phone calls relating to the case, and failing to prepare to actually litigate.

In determining what sanction to recommend, the Hearing Committee took

into account that while respondent‟s misconduct was serious, the misconduct arose

out of a single representation, that respondent‟s demeanor showed that he

“understood the seriousness of the issues,” and that there was no allegation that

(…continued)

limitations period was about to expire, and that, having received no response to the

letter, respondent filed a civil complaint against both the owner and driver of the

car and GEICO, purportedly on Ms. Brown‟s behalf. The Hearing Committee also

found that “unbeknownst to [r]espondent,” Ms. Brown had retained another

attorney, who had already filed a lawsuit against the owner and driver on her

behalf. The complaint filed by respondent was eventually dismissed after

respondent filed a motion to withdraw and failed to effect service of process.

8

Ms. Brown was actually prejudiced by respondent‟s misconduct. 2 But the

Committee also found “troubl[ing]” and “significant aggravating factor[s].” The

Committee found that respondent made misrepresentations to Disciplinary Counsel

when he responded to Ms. Brown‟s complaint, “mischaracterizing the $8,800

payment from GEICO as a [mere] settlement offer and . . . giving the misleading

impression that he had met with Ms. Brown to discuss the offer soon after it was

made” (even though he did not meet with Ms. Brown until a year and a half later).

(emphasis added). Further, the Hearing Committee found that respondent‟s

testimony that Ms. Brown had approved the settlement (“despite all evidence

pointing to the contrary conclusion”) was “not credible,” that respondent

“essentially conceded that he had lied to GEICO „in an effort to protect [his]

client‟s interest,‟” and that respondent “falsely testified” before the Committee

when he told the Committee that his statement to GEICO was itself a lie. The

Committee also cited as an aggravating factor the fact of respondent‟s prior

discipline (a public censure in 2007 for incompetence, neglect, and failure to

communicate with a client), but reasoned that the prior discipline was “not as

aggravating as if the conduct had taken place[] after [respondent] had already been

2

This was presumably because GEICO agreed to accept the returned

settlement amount and because the successor attorney filed a lawsuit on Ms.

Brown‟s behalf before the statutory limitations period had run.

9

through a disciplinary proceeding.” 3 The Hearing Committee ultimately

recommended that respondent be suspended for forty-five days and be required to

undergo an assessment by the D.C. Bar Practice Management Advisory Service as

a condition of reinstatement.

The Board majority adopted the Hearing Committee‟s findings of fact and

conclusions of law, with the exception that the majority disagreed with the Hearing

Committee‟s conclusion that respondent did not violate Rule 1.15 (b) (now 1.15

(c)) (failure to promptly notify client of receipt of funds). The Board majority

disagreed with the Hearing Committee‟s recommended sanction, however, because

— after the Hearing Committee‟s recommendation was issued and before the

Board made its recommendation — respondent had arranged for the Practice

Management Advisory Service to conduct an assessment of his firm “to ensure that

mistakes [like those] that happened in the handling of Ms. Brown‟s case d[id] not

recur.”

3

The Hearing Committee rejected respondent‟s argument that “the passage

of time between the underlying events and the hearing should mitigate any

sanction imposed,” finding that the delay did not “prejudice[] [r]espondent‟s ability

to defend himself.” Ms. Brown died before the Committee hearing commenced

but after the parties had what the Board found was “ample opportunity to interview

her.”

10

In a February 15, 2017, letter detailing the results of that assessment, the

D.C. Bar Assistant Director for the Practice Management Advisory Service stated

that respondent was “operating a very effective law firm and employing excellent

management tools” and that “[i]t [wa]s apparent . . . that the policies and

procedures [respondent had] in place in [his] firm, the team approach [respondent]

employ[s] in handling cases, [and] the lower volume and [respondent‟s] direct

involvement in each case make an occurrence like that which gave rise to the bar

complaint in 2004 very unlikely.” Taking into account that assessment, the lack of

prejudice to the client, what the Board observed to be respondent‟s contrition, and

respondent‟s having acted on the recommendation to have a Practice Management

Advisory Service review, the Board concluded that there was “significant[]

mitigat[ion].” The Board therefore recommended a forty-five-day suspension

stayed pending six months of probation. 4 The Board made that recommendation

even though it found “the case against [r]espondent . . . most similar to those in

which sixty-day suspensions were imposed.”

4

Board Chair Robert C. Bernius wrote separately, joining the Board‟s

report and recommendation “except for the conclusion that [r]espondent‟s conduct

violated [then] Rule 1.15 (b)[] and the recommendation that his suspension be

stayed in its entirety.” Board member Mary Lou Soller agreed with Chair

Bernius‟s separate statement.

11

Disciplinary Counsel takes exception to the Board‟s stay-in-favor-of-

probation recommendation, asserting that the Board‟s recommended sanction “falls

short of protecting the public and the profession.” Disciplinary Counsel

emphasizes that the Board majority made this recommendation despite adopting

the Hearing Committee‟s findings that respondent made misleading statements to

Disciplinary Counsel and testified falsely before the Hearing Committee.

Disciplinary Counsel also argues that the Board majority “gave unwarranted

consideration and weight to [respondent‟s] unsworn and uncross-examined

profession of remorse and claim of voluntary remediation.” Disciplinary Counsel

asserts that respondent should “serve an actual suspension of at least 45 days.” As

noted above, respondent disagrees with some of the Hearing Committee‟s and

Board‟s findings, 5 but does not ask us to reject any, and he takes no exception to

the Board‟s recommended sanction.

II.

This court “review[s] de novo the Board‟s legal conclusions and other legal

questions, but we defer to the factual findings of the Hearing Committee and the

5

Respondent asserts, for example, that he did not abdicate responsibility for

the client, and he maintains that he did not testify falsely before the Hearing

Committee.

12

Board „unless they are unsupported by substantial evidence‟ in the record.” In re

Speights, 173 A.3d 96, 99 (D.C. 2017) (internal footnote omitted) (quoting D.C.

Bar Rule XI, § 9 (h)(1)). Moreover, “we „shall adopt‟ the Board‟s recommended

disposition „unless to do so would foster a tendency toward inconsistent

dispositions for comparable conduct or would otherwise be unwarranted.”‟ Id.

(quoting D.C. Bar Rule XI, § 9 (h)(1)). “But although we must give considerable

deference to the Board‟s recommendations in these matters, the responsibility for

imposing sanctions rests with this court in the first instance.” In re Chapman, 962

A.2d 922, 924 (D.C. 2009) (internal quotation marks omitted). We will modify a

recommended sanction if it “fails to achieve consistency with the prior opinions of

this court.” In re Kennedy, 542 A.2d 1225, 1229 (D.C. 1988). While “the purpose

of imposing a sanction is not to punish the attorney, but to protect the public and

the courts [and] safeguard the integrity of the profession,” it is also to “deter

respondent and other attorneys from engaging in similar misconduct.” In re

Downey, 162 A.3d 162, 170 (D.C. 2017) (internal quotation marks omitted).

We conclude that our resolution in this case is governed by our “mandate for

consistency of sanctions.” In re Brown, 851 A.2d 1278, 1280 (D.C. 2004). We

find that the facts of this case are most similar to those of In re Chapman.

Chapman neglected his client‟s case, 962 A.2d at 923, “made deliberately

13

dishonest statements to [Disciplinary] Counsel during its investigation,” id. at 925,

and gave testimony before the hearing committee that we found was susceptible to

an interpretation that the testimony was either “not credible” (the Board‟s

interpretation) or “deliberately dishonest” (Disciplinary Counsel‟s interpretation),

id. at 925, 925 n.1. Chapman had no prior disciplinary history, but his neglect

resulted in the client‟s case being dismissed, id. at 923, 927, and he “refused to

take responsibility or show any remorse for his misconduct,” id. at 927. We

concluded that a sixty-day suspension, with thirty days stayed in favor of a one-

year period of probation was an appropriate sanction. Id. Here, respondent

neglected his client, made misleading statements to Disciplinary Counsel, and gave

what the Hearing Committee and Board found was “not credible” or “false

testimony.” Unlike Chapman, respondent has a prior disciplinary history

(involving violation of some of the same Rules involved here), but the Hearing

Committee and the Board found that he understands the seriousness of the issues.

On balance, we conclude that a sanction similar to the one we imposed in

Chapman — a sixty-day suspension, with thirty days stayed in favor of a one-year

period of probation — is warranted here as well. 6

6

See also, e.g., In re Outlaw, 917 A.2d 684, 686, 689 (D.C. 2007)

(imposing a sixty-day suspension for neglect and dishonesty). An additional

reason for not deferring to the Board‟s recommended forty-five-day suspension is

this court‟s observation, a number of years ago, that “[w]e are unaware of any case

(continued…)

14

“We are imposing the suspension in this case . . . because of the importance

of making clear to the public that the legal profession and this court do not tolerate

the kind of neglect and misrepresentation evident here.” In re Ontell, 593 A.2d

1038, 1043 (D.C. 1991). But in imposing the suspension, we recognize that

“clients, as well as respondent, may be prejudiced by respondent‟s having to give

up his practice” during the suspension period. Id. Given the assessment by the

Practice Management Advisory Service, we are satisfied that “the interests of the

public, as well as fairness to the respondent, will best be accommodated if we

allow respondent to begin his [thirty-day] suspension at any time within ninety

days of our suspension order,” “provided [that respondent‟s] clients and the

attorneys for adverse parties are informed of his impending suspension.” Id.

“[A]dditional time before suspension . . . [may be] a help to clients and respondent

alike either in resolving matters expeditiously, without need for new counsel, or in

assuring that successor counsel can be enlisted with minimum disruption to

pending matters.” Id.

(…continued)

in which an attorney has been suspended in other than 30 day increments.” In re

Landesberg, 518 A.2d 96, 102 n.6 (D.C. 1986). The court further stated that

“[w]hile there is nothing magic about 30 day increments, the Board‟s obligation is

to recommend sanctions which foster consistency. A sanction that differs

structurally from any sanction ever imposed can hardly be said to foster

consistency.” Id.

15

Because, as acknowledged by Disciplinary Counsel, respondent has already

undertaken the Practice Management Advisory Service review, resulting in that

office‟s assessment that he is not likely to repeat the misconduct for which we are

suspending him, 7 the only condition we impose during the probationary period is

that respondent comply with the Rules of Professional Conduct.

We therefore order that respondent Michael L. Avery, Sr., is suspended from

the practice of law in the District of Columbia for a period of sixty days, with thirty

days stayed in favor of one year of probation. The thirty-day period of actual

suspension shall “begin on a date respondent selects — and reports in advance to

[Disciplinary] Counsel — within ninety days after this court‟s suspension order,”

id., provided that he has by that date filed the affidavit required by D.C. Bar Rule

XI, § 14 (g). If a new complaint is filed against respondent before the end of the

probationary period and such complaint results in a finding that respondent

7

This assessment may be part of what Disciplinary Counsel criticizes as

respondent‟s “unsworn and uncross-examined . . . claim of voluntary remediation.”

However, the Practice Management Advisory Service assessment is information

that we deem reliable and that we may take into account for purposes of

determining what sanction is appropriate. We have frequently directed

respondents to “obtain an assessment from [the Practice Management Advisory

Service] and comply with and implement any [Practice Management Advisory

Service] recommendations.” In re Coleman, 162 A.3d 159, 161 (D.C. 2017); see

also, e.g., In re Murdter, 131 A.3d 355, 362 (D.C. 2016).

16

violated the Rules of Professional Conduct, respondent will be required to serve

the remaining thirty days of the suspension consecutively with whatever other

sanction may be imposed on him in the new matter(s). It is

So ordered.