# In re Brown

> District of Columbia Court of Appeals · March 7, 2024

URL: https://www.frixlaw.com/law-library/cases/9948474

## Case

- **Court:** District of Columbia Court of Appeals
- **Decided:** March 7, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Notice: This opinion is subject to formal revision before publication in the
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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-BG-0589

IN RE ALVIN S. BROWN, RESPONDENT.

A Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 263681)

On Report and Recommendation of the
Board on Professional Responsibility
(Disciplinary Docket No. 2017-D242)
(Board Docket No. 19-BD-032)

(Submitted February 10, 2022 Decided March 7, 2024)

Alvin S. Brown, pro se.

Myles V. Lynk, Senior Assistant Disciplinary Counsel, with whom Hamilton
P. Fox, III, Disciplinary Counsel, was on the brief, for appellee.

Before BECKWITH, EASTERLY, and DEAHL, Associate Judges.

BECKWITH, Associate Judge: The Board on Professional Responsibility

recommends that respondent Alvin S. Brown be suspended for sixty days from the

practice of law, and that as a condition of reinstatement, he be required to

demonstrate his fitness and pay restitution. The Board makes these

recommendations after determining that Mr. Brown violated eight separate rules of
2

professional conduct when he failed to provide promised legal services to his client,

failed to sufficiently communicate with his client, charged his client fees for services

not provided, and failed to return unearned legal fees. We hold that the record

supports the Board’s conclusions and we adopt the Board’s recommendations.

I.

The evidence before the Ad Hoc Hearing Committee showed that Mr. Brown

has been a member of the District of Columbia Bar since 1979. Although Mr. Brown

was not a member of the Bar of New York, he has been allowed to represent

taxpayers in proceedings before the New York Department of Taxation and Finance

(DTF) because he met certain other qualifications. 1 When Ali Pascal Bahri came to

Mr. Brown with a New York tax-liability problem, Mr. Brown agreed to represent

him.

Specifically, Mr. Bahri’s tax issues arose from sales-tax liability he accrued

in 2003, when he owned a 51% majority of Purecells, Inc. Under New York tax law,

if a business does not pay its sales taxes, then certain individuals—including

majority owners—can be held personally liable, even if the corporation goes into

The record refers to the Department as the “Department of Taxation and
1

Revenue.” We assume this is an error; there is no New York Department of Taxation
and Revenue.
3

bankruptcy. In 2003, Purecells owed, but did not pay, approximately $14,800 in

sales taxes to New York. At the same time, Mr. Bahri was experiencing several

personal and business challenges. After getting divorced, he chose not to renew his

green card, closed Purecells, and returned to his home country of France. Mr. Bahri

did not learn about his tax liability until he returned to the United States in 2011 and

the state began to garnish his wages. Mr. Bahri returned to France until 2015, when

he became eligible for a U.S. green card. He then came back to the United States

and attempted, unsuccessfully, to resolve his state sales-tax liability. By February

2016, when Mr. Bahri sought Mr. Brown’s legal assistance, his tax liability had

ballooned to more than $68,000.

As his lawyer, Mr. Brown could have pursued two options to minimize Mr.

Bahri’s tax liability. Under New York law, taxpayers may seek an Offer in

Compromise (OIC) by submitting to the Office of Compromise financial statements

and other documents showing a financial inability to pay their taxes. Alternatively,

individuals who have a good reason for failing to pay their taxes, like an

“unavoidable absence from [their] usual place of business,” may seek an abatement

from whichever office initiated the tax bill. N.Y. Comp. Codes R. & Regs. tit. 20 §

2392.1(d). Unlike taxpayers seeking an OIC, taxpayers seeking an abatement need

not show a financial hardship.
4

Mr. Brown titled his engagement agreement with Mr. Bahri “Engagement

Agreement for NY State Sales Tax Offer-in-Compromise Settlement Agreement.”

The body of the agreement included language requiring Mr. Bahri to provide either

evidence that the tax liability was “unfair and/or unjustified to some extent” or that

Mr. Bahri was suffering “economic hardship.” Taken together, the title and the body

of the agreement suggest that Mr. Brown offered to pursue either an OIC or an

abatement for Mr. Bahri, though it was unclear which one.

Mr. Bahri accepted the engagement agreement and paid Mr. Brown a $4,000

flat fee. In March 2016, Mr. Bahri provided Mr. Brown with several documents and

stated by email, “I do not dispute the sales tax amount due but the penalties and

interests [I] do dispute.”

Two months later, Mr. Bahri emailed Mr. Brown to “touch base.” Mr. Brown

responded: “Got a call from White. They are waiting to hear from IRS Counsel but

she expects it soon.” This made little sense. Neither the IRS nor a person named

“White” was involved in the matter and Mr. Bahri owed taxes to the state of New

York, not the IRS. In reality, Mr. Brown had not yet contacted anyone or filed

anything to assist Mr. Bahri, so there was nothing he could be waiting on.

When Mr. Bahri followed up two months later and asked for an update,

Mr. Brown responded that “there is nothing we can do. My guess is that the office
5

is busy.” Mr. Bahri asked for clarification, but Mr. Brown did not respond.

Mr. Bahri followed up once more, and once more received no substantive update on

his matter.

Finally, on August 9, 2016, Mr. Brown informed Mr. Bahri that he had “a

legal memorandum that is mostly complete.” When asked during disciplinary

proceedings about the alleged legal memorandum, Mr. Brown produced a cover

letter with one-page legal argument. In that same August 2016 email, Mr. Brown

also asked Mr. Bahri for a number of documents that he claimed he needed, despite

having received them several months earlier. Mr. Bahri resent the files, including

additional copies of his green cards to show that he was out of the country until 2015.

Mr. Bahri also reiterated that he did “not dispute the princip[al] amt of sales tax

owed[.] I am disputing all of the penalties and interest imposed.”

When Mr. Bahri followed up the following month asking for an update on his

case, Mr. Brown said that he would “check on that.” Mr. Brown did not report that

he still had not filed anything on Mr. Bahri’s behalf or that he had not yet spoken

with anyone at DTF about Mr. Bahri’s matter.

In October 2016, Mr. Brown took the first official step in Mr. Bahri’s matter.

He filed an OIC, stating that the offer was “based on no liability for the sales tax

amount and years in the attached statement” and that Mr. Bahri would be willing to
6

make a $1,000 payment. These two statements were inconsistent with Mr. Bahri’s

repeated insistence that he was willing to pay the initial sales taxes owed and sought

to refute only the interest and penalties he had accrued. Mr. Brown also incorrectly

stated that “Bahri is a naturalized citizen of the U.S. who lived abroad when the sales

tax liability was incurred.” Mr. Bahri was not a naturalized citizen and was not

living abroad when the initial sales tax liability was incurred.

That same month, Mr. Bahri emailed Mr. Brown asking for an immediate

update, warning that he was “close to filing a complaint with the discipline and

grievance committee” and demanding a full refund if Mr. Bahri was not able to

competently handle the case. Mr. Brown responded immediately and informed

Mr. Bahri that he had filed with New York but was missing proof of what Mr. Bahri

was “doing abroad prior to 2004. Where were you living and/or working.” He also

sent Mr. Bahri, for the first time, the document he had filed with DTF. Mr. Bahri

responded and explained again that he was in the United States prior to 2004, that

he was out of the United States from 2004 to 2015, and that he was seeking relief

only from the penalties and interest, not the original sales tax.

In response, Mr. Brown asked where Mr. Bahri was from 2001 to 2003 and

stated that if Mr. Bahri could show that he was working full time in a foreign country

at that time, then he would have “no responsibility” for the sales tax. Mr. Brown
7

concluded his email with “I do not know why this point is not clear to you.” In a

follow-up email, Mr. Brown said that Mr. Bahri would need to provide “[r]ent

receipts, wage documentation, car rental, passport—that kind of data.”

Meanwhile, DTF was dealing with Mr. Brown’s filings. It sent Mr. Brown a

letter explaining that the OIC was incomplete and giving Mr. Brown until November

15, 2016, to supply the required financial information. There is no evidence that

Mr. Brown ever informed Mr. Bahri of this letter, asked for the required documents,

or responded to DTF. 2 In fact, after his October 2016 email correspondence with

Mr. Bahri, Mr. Brown did not communicate with his client again until January 2019.

In this time, Mr. Bahri twice asked Mr. Brown for an update about the status of his

case but received no reply.

Finally, in January 2019, Mr. Brown responded after Mr. Bahri asked for a

refund for his legal fees. Mr. Brown wrote “[o]utside of the fact that NY State denied

my application for abatement, I could find no other pathway to get that abatement.”

2
According to the hearing committee’s report, “[a]t the hearing, Respondent
claims he told Mr. Bahri about the DTF’s ‘return’ of the Offer in Compromise, but
there is no documented support for this assertion, Mr. Bahri denies it, and
Respondent admits that he did not tell Mr. Bahri that DTF was seeking additional
information.” The hearing committee therefore found “unreliable” Mr. Brown’s
“recollection and testimony about whether he told his client anything at all about the
New York DTF’s response to the Offer in Compromise.”
8

But Mr. Brown had not sought an abatement for Mr. Bahri; he had filed an OIC.

And New York had not rejected his application; it had asked for more information,

which Mr. Brown failed to seek from Mr. Bahri and failed to provide to the state.

At the time of Mr. Brown’s hearing before the hearing committee, Mr. Bahri

had not been refunded any of his legal fees, had been unable to resolve his tax

liabilities, and had continued to struggle to manage his finances. His tax debt to the

state was still growing, which prevented him from opening a checking account,

building a credit history, or carrying out financial transactions in anything other than

cash.

The hearing committee found that Mr. Brown violated

Rules 1.1(a) (failure to provide competent representation);
1.3(a) (failure to represent a client with zeal and
diligence); 1.3(b)(1) (intentional failure to seek lawful
objectives of a client); 1.3(c) (failure to represent a client
with reasonable promptness); 1.4(a) (failure to keep client
reasonably informed); 1.5(a) (charging unreasonable fee);
1.15(e) (failure to treat advance fee as property of client);
and 1.16(d) (failure to take reasonable steps to protect
client’s interests in event of termination, and refund
unearned fees).

It recommended a sixty-day suspension from the practice of law and required as a

condition of reinstatement that Mr. Brown: “(a) make restitution to his client

Mr. Bahri in the amount of $4,000 plus interest calculated at the legal rate (6%)
9

running from June 13, 2016 to the date of payment; and (b) make a demonstration

of fitness before being readmitted to the practice of law.”

The Board adopted the hearing committee’s recommendations, “finding that

Disciplinary Counsel has proven each rule violation by clear and convincing

evidence, and agr[eeing] that Respondent should be suspended for sixty days with a

requirement that he show fitness and pay restitution before being reinstated.”

II.

This court must “accept the findings of fact made by the Board unless they

are unsupported by substantial evidence of record.” D.C. Bar Rule XI, § 9(h)(1).

“The Board, in turn, is required to accept the factual findings of the hearing

committee that are supported by substantial evidence in the record, viewed in its

entirety.” In re Samad, 51 A.3d 486, 495 (2012) (per curiam) (quoting In re Shariati,

31 A.3d 81, 86 (D.C. 2011) (per curiam)). We review the Board’s legal conclusions

de novo. Id.

A. Rule 1.1(a)

Rule 1.1(a) mandates that “[a] lawyer shall provide competent representation

to a client. Competent representation requires the legal knowledge, skill,

thoroughness, and preparation reasonably necessary for the representation.” A
10

lawyer violates Rule 1.1(a) if he makes “an error that prejudices or could have

prejudiced a client and the error was caused by a lack of competence.” In re

Yelverton, 105 A.3d 413, 422 (D.C. 2014) (quoting In re Evans, 902 A.2d 56, 70

(D.C. 2006) (per curiam)).

The Board found that Mr. Brown “pursued an avenue of relief [for Mr. Bahri]

that was not available [to Mr. Bahri] in New York and did not explore any other

options after learning that his original offer would not be considered.” Whether a

misguided strategic decision or a failure to conduct sufficient research, Mr. Brown’s

actions did not, in the Board’s view, constitute competent representation, “and his

failure to provide [competent representation] prejudiced Mr. Bahri’s interests by

delaying resolution of his tax liability while penalties and interest continued to

accumulate.” The Board therefore concluded that Disciplinary Counsel had satisfied

its requirement for proving a 1.1(a) Rule violation.

Mr. Brown disputes the Board’s determination and argues that he was

competent, despite what he admits were his failures to complete an OIC for

Mr. Bahri and to begin the process of seeking an abatement for Mr. Bahri.

First, as to the OIC, Mr. Brown argues that he was not required to seek such

relief for Mr. Bahri under the engagement agreement. According to Mr. Brown, the

engagement agreement laid out two avenues for relief—abatement or OIC. Because
11

Mr. Bahri never provided the required economic documents to support a claim of

economic hardship required for an OIC, he implicitly rejected that avenue for relief.

Mr. Brown further argues that—even if he were required to complete an OIC under

the engagement agreement—Mr. Bahri was not prejudiced by Mr. Brown’s failure

to do so. According to Mr. Brown, even if those documents had been submitted to

New York, the state would have denied the request because it would not have been

in the state’s “best interest” to settle tax debt “accrued from stolen funds.”

Disciplinary Counsel counters that the engagement agreement was unclear as

to whether Mr. Brown agreed to seek an OIC or an abatement for Mr. Bahri and that

Mr. Brown failed to seek economic data from Mr. Bahri. Had Mr. Brown “actually

sought to ascertain Mr. Bahri’s financial condition, he might well have found

support for an Offer in Compromise.”

As an initial matter, this court has held “that any supposed failure of a client

to fulfill a retainer agreement is no defense to a disciplinary charge against an

attorney.” In re Ryan, 670 A.2d 375, 380 (D.C. 1996). It is a “fundamental principle

that an attorney’s ethical duties to a client arise not from any contract but from the

establishment of a fiduciary relationship between attorney and client.” Id. at 379.

Mr. Brown cannot sidestep his responsibility to provide competent representation

simply because Mr. Bahri did not immediately provide economic documents. This
12

is especially true here, where Mr. Brown made a cursory reference to economic-

hardship documents in the initial engagement agreement and never followed up with

Mr. Bahri to discuss those documents, even after the state of New York explicitly

requested them. “To the extent a lawyer limits the scope of representation”—such

as when a lawyer’s offer to perform a service for a client is contingent on the client

providing specific documents—“it is essential that [the client] clearly understand the

division of responsibilities under a limited representation agreement.” In re Samad,

51 A.3d at 497 (quoting In re Ryan, 670 A.2d at 379). There is no indication here

that Mr. Bahri understood the alleged limits on the scope of Mr. Brown’s

representation or that Mr. Brown did anything to ensure Mr. Bahri’s understanding.

We find equally unpersuasive Mr. Brown’s argument that Mr. Bahri was not

prejudiced by Mr. Brown’s failure to complete the OIC. First, as the Board found,

Mr. Bahri was prejudiced by Mr. Brown’s lengthy delay in representing Mr. Bahri.

In the several months that it took for Mr. Brown to submit an OIC, and in the time

after New York responded to Mr. Brown but Mr. Brown failed to communicate with

Mr. Bahri, Mr. Bahri’s tax liability continued to compound. And we are not

persuaded by Mr. Brown’s contention that following up on the OIC would have been

futile. His conclusion that Mr. Bahri could not show economic hardship is based on

nothing more than a trip Mr. Bahri took to China. Mr. Brown cites no New York

caselaw showing that the ability to pay for international travel—or any other alleged
13

luxury—precludes a taxpayer from showing economic hardship. And he cites no

authority to support his assumption that it would be against New York’s best interest

to grant an OIC.

As to his failure to even begin the process of requesting an abatement for

Mr. Bahri, Mr. Brown states that there was no Rule 1.1(a) violation because

Mr. Brown’s failure did not prejudice Mr. Bahri. According to Mr. Brown,

Mr. Bahri could not satisfy the “reasonable cause” requirement for New York’s

abatement process because Mr. Bahri’s statement that he was “not aware” of his tax

liability was “self-serving hearsay.” He further argued that being unaware of a tax

liability does not qualify as reasonable cause under New York tax law.

As Disciplinary Counsel’s brief accurately observes, “[p]resumably every

taxpayer’s explanation is self-serving to some extent.” Besides, Mr. Brown does not

point to any New York precedent suggesting that a taxpayer fails to satisfy the

“reasonable cause” requirement if he is unaware of his tax liability because he is out

of the country. Even if Mr. Brown’s decision not to pursue an abatement for

Mr. Bahri was a tactical judgment, that does not excuse his behavior. “[T]actical

judgments must be informed.” In re Samad, 51 A.3d at 496. Mr. Brown’s decisions

were not informed by a competent understanding of New York law.
14

B. Rule 1.3

The Board agreed with the hearing committee that Mr. Brown violated Rules

1.3(a), 1.3(b)(1), and 1.3(c) “because he failed to take action on Mr. Bahri’s tax

matter for several months (while telling Mr. Bahri that a request for relief was

pending), and he ignored the DTF’s request for additional information because he

concluded that Mr. Bahri’s tax relief request was futile, without communicating that

conclusion to Mr. Bahri.”

Rule 1.3(a) requires a lawyer to “represent a client zealously and diligently

within the bounds of the law.” Mr. Brown insists that he zealously and diligently

represented Mr. Bahri by spending eight months searching for an abatement tax

form. That argument is facially absurd. As Disciplinary Counsel correctly points

out, “[a] zealous and diligent advocate would have contacted the State agency or an

experienced New York tax practitioner to find out how to file for an abatement.”

Mr. Brown argues that such efforts would have been futile because the tax form he

sought does not exist. Mr. Brown’s reasoning is circular—if effectively searching

for a nonexistent tax form is futile, then ineffectively searching for it cannot also

constitute zealous advocacy. Had Mr. Brown educated himself about abatement

procedures in New York, he would have learned that an abatement tax form did not

exist and would have known to shift his efforts to other avenues for addressing
15

Mr. Bahri’s tax liability. He would have learned, for example, that the correct way

to pursue a New York tax abatement is by calling the Selection and Resolution

Center and explaining why Mr. Bahri had reasonable cause for missing his tax

payments and why the tax penalty should be abated.

Rule 1.3(b)(1) directs that “[a] lawyer shall not intentionally . . . [f]ail to seek

the lawful objectives of a client through reasonably available means permitted by

law and the disciplinary rules.” Here, Mr. Brown again argues that he could not seek

any relief for Mr. Bahri because, according to him, Mr. Bahri did not suffer

economic hardship and did not have reasonable cause for not paying his taxes.

Again, Mr. Brown does not cite any precedent to support these legal conclusions.

And, as Mr. Bahri’s legal advocate, Mr. Brown had an obligation to “resolve in favor

of [his] client doubts as to the bounds of the law.” Comment 4 to Rule 1.3. Here,

Mr. Brown did the opposite—without any case support, he resolved all legal doubts

to the detriment of Mr. Bahri and then used these unsupported legal conclusions to

justify neglecting his client. His stated assumption that Mr. Bahri could not satisfy

the economic hardship requirement for an OIC is undermined by Mr. Brown’s

decision to submit an OIC on Mr. Bahri’s behalf. Regardless of the likelihood of

success, having submitted the OIC, Mr. Brown was obligated to follow through on

the process. Comment 9 to Rule 1.3 (“Unless the relationship is terminated as

provided in Rule 1.16, a lawyer should carry through to conclusion all matters
16

undertaken for a client.”)

And under Rule 1.3(c), a lawyer must “act with reasonable promptness in

representing a client.” Because a lawyer’s procrastination can cause real harm to a

client—both practical and psychological—“[n]eglect of client matters is a serious

violation of the obligation of diligence.” Comment 8 to Rule 1.3. Mr. Brown says

that he did not procrastinate in serving Mr. Bahri, but instead spent several months

searching for a tax form that does not exist. And he argues that he had no obligation

to respond to the state of New York because the engagement agreement did not

require Offer-in-Compromise services. We reject both arguments for the reasons

stated above: Spending eight months searching for a nonexistent tax form is facially

unreasonable. And a lawyer may not avoid his fiduciary duty to a client by hiding

behind a confusing and vague attorney-client agreement. Having started the Offer-

in-Compromise process for Mr. Bahri, Mr. Brown had an obligation to complete it

and keep Mr. Bahri informed of developments along the way.

We adopt the Board’s recommended finding that Mr. Brown violated Rules

1.3(a), 1.3(b)(1), and 1.3(c).

C. Rule 1.4(a)

Rule 1.4(a) requires a lawyer to “keep a client reasonably informed about the
17

status of a matter and promptly comply with reasonable requests for information.”

“The guiding principle for evaluating conduct under Rule 1.4(a) ‘is whether the

lawyer fulfilled the client’s reasonable . . . expectations for information.’ To meet

that expectation, a lawyer not only must respond to client inquiries but also must

initiate communications to provide information when needed.” In re Hallmark, 831

A.2d 366, 374 (D.C. 2003) (quoting In re Schoeneman, 777 A.2d 259, 264 (D.C.

2001)).

The Board found that Mr. Brown violated this rule because—despite

Mr. Bahri’s repeated request for an update on his matter—Mr. Brown “failed to tell

Mr. Bahri that the DTF needed additional information.” The emails that Mr. Brown

did send to Mr. Bahri “were simply requests for irrelevant information.”

Mr. Brown argues that any failure to keep Mr. Bahri reasonably informed was

justified because Mr. Brown “had no updates with his ongoing ‘tax research’ looking

for a NY form that could address a fixed and final liability.” But again, Mr. Brown’s

eight-month effort to find a nonexistent tax form was not reasonable. His failure to

zealously advocate for his client cannot justify failing to keep his client updated.

The purpose of Rule 1.4 is to ensure that clients “have sufficient information

to participate intelligently in decisions concerning the objectives of the

representation and the means by which they are to be pursued.” Comment 1 to
18

Rule 1.4. A client can participate intelligently in decisions only if the client has

accurate information about a lawyer’s actions on his behalf. That did not happen

here. Instead, many of Mr. Brown’s emails to Mr. Bahri were misleading, if not

outright dishonest. At the very least, Mr. Brown had a duty to respond to Mr. Bahri

and inform him that he was still searching for a form. That would have given

Mr. Bahri the chance to evaluate whether he should look elsewhere for more

competent representation.

Mr. Brown also argues that the Board erred in finding that Mr. Brown failed

to inform Mr. Bahri about the DTF’s request for additional information. According

to Mr. Brown, Mr. Bahri’s “opinion to the contrary is the opinion of a thief who stole

NY 2003 sales tax trust funds, did not hand trust fund money to a bankruptcy court

upon the bankruptcy of Purecells, Inc., and spent the NY trust funds on personal

expenses, including a trip to China.” In effect, Mr. Brown is asking us to make our

own credibility determinations. But “[a]ssessing the credibility of witnesses is a

matter left to the factfinder, which in disciplinary proceedings is the hearing

committee.” In re Hallmark, 831 A.2d at 373. Here, the hearing committee found

“unreliable [Mr. Brown’s] recollection and testimony about whether he told his

client anything at all about the New York DTF’s response to the Offer in

Compromise.” Rejecting the committee’s finding of fact requires more than

unsupported character assassinations of a client. Mr. Brown does not cite any
19

evidence to support his assertion that he told Mr. Bahri about the DTF request for

additional information.

D. Rule 1.5(a)

Rule 1.5(a) requires that a lawyer’s fee be “reasonable.”

The Board concluded that Mr. Brown violated Rule 1.5(a) because he did not

earn any of the $4,000 fee he charged Mr. Bahri. “[T]he only work Respondent

completed—filing an Offer in Compromise—was both incorrect and not pursued.”

And once the DTF informed Mr. Brown of his mistake, he “did nothing to correct

[it] or to otherwise advance his client’s objectives.” Because “[f]iling the Offer in

Compromise provided no benefit or value to” Mr. Bahri, “it was the equivalent of

doing nothing. As a result, Mr. Bahri did not receive the benefit of what he had

contracted for when he provided the $4,000 flat fee.”

Mr. Brown makes three arguments in response to the Board’s conclusion.

None is persuasive.

First, Mr. Brown argues that Mr. Bahri’s matter was more complicated than

he initially anticipated. But that does not change the analysis here; it is the risk a

lawyer takes when choosing to charge clients a flat fee. See In re Mance, 980 A.2d

1196, 1204 (D.C. 2009) (explaining that flat fees eliminate “the uncertainty, anxiety
20

and surprise” to clients that is “often found with hourly rates, especially in protracted

litigation”) (internal quotations and citation omitted). While flat fees reward lawyers

for efficiency, they also move the financial risk of protracted litigation or

complicated legal matters from the client to the lawyer. Id. Having chosen to accept

that risk, Mr. Brown cannot now transfer it back to Mr. Bahri.

Second, Mr. Brown argues that he did, in fact, earn the $4,000 fee because he

spent many months diligently searching for the nonexistent tax form. As we have

said above, spending eight months searching for a tax form is patently unreasonable

and demonstrates a serious lack of competence. Mr. Bahri paid Mr. Brown $4,000

to endeavor to address his tax burden. Mr. Bahri received nothing of value for that

fee—his taxes were not abated, he did not learn whether they could be abated, and

he did not get a final conclusion from the state of New York. Instead, he waited for

several years, assuming his lawyer was diligently working on his case, only for his

tax interest to continue to increase.

Finally, Mr. Brown argues that the Board erred because it did not consider his

engagement agreement with Mr. Bahri. But as we have said, regardless of his

proposed interpretation of the engagement agreement, a lawyer cannot avoid his

fiduciary duty to a client by pointing to a contract.
21

E. Rule 1.15(e)

Rule 1.15(e) states that “[a]dvances of unearned fees and unincurred costs

shall be treated as property of the client . . . until earned or incurred unless the client

gives informed consent to a different arrangement.” “Such a fee is earned ‘only to

the degree that the attorney actually performs the agreed-upon services.’ In sum, a

flat fee is an advance of unearned fees because it is money paid up-front for legal

services that are yet to be performed.” In re Mance, 980 A.2d at 1202 (quoting Alec

Rothrock, The Forgotten Flat Fee; Whose Money is it and Where Should it be

Deposited?, 1 Fla. Coastal L.J. 293, 347 (1999)).

Mr. Brown does not dispute that he took each of Mr. Bahri’s four $1,000

payments as his own income and never put them in a separate account. But he argues

that this did not violate Rule 1.15(e) because, according to him, he earned the fees

on the day that they were paid. Specifically, he states that he searched “exhaustively

for a NY form that could be used to challenge a fixed and final liability,” became an

“expert on the definition of ‘reasonable cause’ under NY law,” engaged in “e-mail

communications with Bahri,” and conducted an analysis of both the engagement

agreements and “the futility of an OIC based on ‘economic hardship.’”

Because we have already concluded that Mr. Brown never earned any of the

fees he charged to Mr. Bahri, we reject the argument that the fees were earned on
22

the day they were paid.

F. Rule 1.16(d)

Rule 1.16(d) states, “[i]n connection with any termination of representation, a

lawyer shall take timely steps to the extent reasonably practicable to protect a client’s

interests, such as . . . refunding any advance payment of fee or expense that has not

been earned or incurred.”

Mr. Brown argues that he did not violate Rule 1.16 because he earned the fees

charged. Again, like the Board, we reject this argument. Mr. Brown did not earn

any of the $4,000 charged and so he was required under Rule 1.16(d) to return the

flat fee at the termination of the representation.

III.

We generally adopt the Board’s recommended penalty in bar discipline cases

“as long as it ‘falls within the wide range of acceptable outcomes.’” In re Krame,

284 A.3d 745, 768 (D.C. 2022) (quoting In re Ekekwe-Kauffman, 210 A.3d 775, 797

(D.C. 2019) (per curiam)). Here, the hearing committee recommended, and the

Board agreed, that Mr. Brown be suspended for sixty days, be required to prove his
23

fitness before resuming the practice of law, and pay Mr. Bahri $4,000 plus interest 3

as restitution. We accept the Board’s recommendation.

A. Suspension

“The discipline we impose should serve not only to maintain the integrity of

the profession and to protect the public and the courts, but also to deter other

attorneys from engaging in similar misconduct.” In re Martin, 67 A.3d 1032, 1053

(D.C. 2013) (quoting In re Scanio, 919 A.2d 1137, 1144 (D.C. 2007)). In

determining the appropriateness of a sanction, we consider several factors: “(1) the

seriousness of the conduct, (2) prejudice to the client, (3) whether the conduct

involved dishonesty, (4) violation of other disciplinary rules, (5) the attorney’s

disciplinary history, (6) whether the attorney has acknowledged his or her wrongful

conduct, and (7) mitigating circumstances.” Id.

Mr. Brown’s conduct was serious. As the Board correctly observed, “[n]ot

only did he fail to carry out the terms of the representation, but he hid that fact from

Mr. Bahri, giving him false reassurances that his matter was in progress and failing

to inform him of the DTF’s request for more information or his decision to abandon

3
Interest is to be calculated at 6% per year, starting from June 13, 2016.
24

the case.”

Mr. Brown’s actions prejudiced Mr. Bahri. During the three years in which

Mr. Bahri waited for Mr. Brown to seek to abate his tax payments, Mr. Bahri’s tax

debt continued to grow. Had Mr. Brown provided competent and ethical

representation, Mr. Bahri either would have reduced his tax debt or would have

received a definitive answer as to what he owed so that he could start chipping away

at his debt immediately.

Mr. Brown demonstrated an alarming level of dishonesty when he led

Mr. Bahri to believe that he was completing tasks he had not yet started.

Mr. Brown violated eight rules: Rule 1.1(a), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a),

1.5(a), 1.15(e), 1.16(d).

Mr. Brown has previously received an informal admonition for violating

Rules 1.3(c), 1.4(a), and 1.5(b).

Mr. Brown refuses to acknowledge any fault in his representation of

Mr. Bahri. Instead, in his briefing before the Board and before this court, he refers

to Mr. Bahri as a “thief.” Like the Board, we find it “deeply troubling to see a lawyer

attack his own client baselessly merely to save his license. And of course, even a

client who has committed a crime ought to have his phone calls returned.”
25

Finally, Mr. Brown did not present, and neither the Board nor the hearing

committee found, any mitigating circumstances.

Each of these seven factors weighs in favor of imposing substantial discipline

on Mr. Brown. Therefore, we agree with the Board that a sixty-day suspension 4 is

reasonable.

B. Prove Fitness

We also adopt the Board’s recommendation that Mr. Brown be required to

prove his fitness to practice law before being reinstated to the Bar. The fitness

requirement and the suspension serve different purposes. While the suspension

serves as a “commensurate response to the attorney’s past ethical misconduct,” the

fitness requirement addresses the concern “that the attorney’s resumption of the

4
As the hearing committee observed, the charges against Mr. Brown “could
support a finding of misappropriation, which would dramatically increase the
recommended sanctions.” Indeed, disbarment—not suspension—is generally the
appropriate sanction when an attorney recklessly or intentionally misappropriates
client funds. See In re Ponds, 279 A.3d 357, 362 (D.C. 2022). Because disciplinary
counsel did not allege misappropriation and did not seek disbarment, and because
we generally “respect the Board’s sense of equity in these matters unless the exercise
of judgment proves to be unreasonable,” In re Smith, 403 A.2d 296, 303 (D.C. 1979),
we do not diverge from the Board’s recommendation that Mr. Brown be sanctioned
but not disbarred. Where an attorney is not found to have misappropriated client
funds, this court has often imposed a brief suspension. See e.g., In re Lattimer, 223
A.3d 437, 451-56 (D.C. 2020) (six months); In re Fox, 35 A.3d 441, 442 (D.C. 2012)
(45 days); In re Ifill, 878 A.2d 465, 476-77 (D.C. 2005) (one year).
26

practice of law will not be detrimental to the integrity and standing of the Bar, or to

the administration of justice, or subversive to the public interest.” In re Lattimer,

223 A.3d 437, 452-53 (D.C. 2020) (per curiam) (quoting In re Cater, 887 A.2d 1,

22 (D.C. 2005)) (internal quotation marks omitted).

We impose a fitness requirement when the disciplinary proceedings “contain

clear and convincing evidence that casts a serious doubt upon the attorney’s

continuing fitness to practice law.” Id. at 453. Specifically, we consider five factors:

“(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 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.” Id. at

453 n.36 (quoting In re Roundtree, 503 A.2d 1215, 1217 (D.C. 1985)).

As we explained above, the nature and circumstances of Mr. Brown’s conduct

were serious, a fact that has been made clear to Mr. Brown by Mr. Bahri, the hearing

committee, and the Board. Nonetheless, Mr. Brown refuses to recognize the

seriousness of his misconduct and continues to shift blame to his client. Nothing

about Mr. Brown’s conduct before the Board or this court suggests that his present

legal work has improved over the course of the disciplinary-review process. To the
27

extent that Mr. Brown’s briefing offers anything relevant to these factors, it is his

statement that he is retiring and is simply continuing to serve previous clients, rather

than actively seeking to bring in new business. Though Mr. Brown may now have

only a limited client base, it is in the interest of the Bar and this court to ensure that

those remaining clients receive competent and ethical legal services. Based on the

record here, we are concerned that Mr. Brown “does not fully appreciate the ethical

responsibilities and obligations that the practice of law requires.” In re Hallmark,

831 A.2d at 377.

C. Restitution

Finally, we turn to the Board’s order requiring Mr. Brown to pay $4,000 plus

interest as restitution to Mr. Bahri. “When imposing discipline, the Court . . . may

require an attorney to make restitution either to persons financially injured by the

attorney’s conduct or to the Clients’ Security Trust Fund (see Rule XII), or both, as

a condition . . . of reinstatement.” D.C. Bar R. XI, § 3(b). Restitution is consistent

with prior cases involving attorney dishonesty and misuse of client funds. See In re

Johnson, 275 A.3d 268, 282 (D.C. 2022) (per curiam) (listing cases). Here,

Mr. Brown took Mr. Bahri’s $4,000 payment and then refused to perform his ethical

duties or provide any benefit to Mr. Brown. Because attorneys may not unjustly

enrich themselves off their client’s fees, we adopt the Board’s recommended
28

disposition requiring Mr. Brown to return the $4,000, plus interest, to Mr. Bahri.

IV. Conclusion

We accept the Board’s conclusion that Mr. Brown violated Rules 1.1(a),

1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.5(a), 1.15(e), and 1.16(d). And we adopt the

Board’s recommendation to impose a sixty-day suspension from the practice of law

and to require as a condition of reinstatement that Mr. Brown demonstrate his fitness

and pay restitution to Mr. Bahri. We direct Mr. Brown’s attention to the

requirements of D.C. Bar R. XI, § 14, and their effect on his eligibility for

reinstatement. See D.C. Bar R. XI, § 16(a).

So ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9948474. Public record. Not legal advice.