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                DISTRICT OF COLUMBIA COURT OF APPEALS

                                       No. 17-BG-1091                         07/26/2018

                       IN RE NATHANIEL H. SPEIGHTS, RESPONDENT.

                              A Member of the Bar of the
                         District of Columbia Court of Appeals
                             (Bar Registration No. 952036)

                            On Report and Recommendation
                       Of the Board on Professional Responsibility
                                     (BDN-253-10)

(Argued June 6, 2018                                       Decided July 26, 2018)

      Nathaniel H. Speights, pro se.

      Hamilton P. Fox, III, Disciplinary Counsel, with whom Hendrik deBoer,
Senior Staff Attorney, was on the brief, for the Office of Disciplinary Counsel.

      Before THOMPSON and MCLEESE, Associate Judges, and FARRELL, Senior
Judge.

      PER CURIAM: The Board on Professional Responsibility (the Board) has

recommended that respondent Nathaniel H. Speights be suspended from the

practice of law in the District of Columbia for two years, and be required to prove

fitness before reinstatement.   In arriving at that recommendation, the Board

adopted the findings of fact and conclusions of law of a Hearing Committee which

determined that respondent, while acting as personal representative of the Estate of
                                          2

Arnold Lindsey, had violated Rules 1.1 (a), 1.1 (b), 1.3 (a), 1.3 (c), and 8.4 (d) of

the District of Columbia Rules of Professional Conduct.         Regarding sanction,

however, the Board has taken into account discipline it previously recommended

and this court imposed in In re Speights, 173 A.3d 96 (D.C. 2017) (Speights I), and

on that basis recommends a suspension exceeding by one year the sanction

recommended by the Hearing Committee. Respondent takes exception both to the

sufficiency of Disciplinary Counsel‟s proof of the ethical violations, and to the

fairness of the proceeding leading to the imposition of sanction.



      In considering respondent‟s objections, we review de novo the Board‟s legal

conclusions and related legal questions, but defer to the factual findings of the

Hearing Committee and the Board “unless they are unsupported by substantial

evidence” in the record. In re Vohra, 68 A.3d 766, 769 (D.C. 2013) (quoting D.C.

Bar R. XI, § 9 (h)(1)); see also In re Martin, 67 A.3d 1032, 1039 (D.C. 2013). We

will adopt the Board‟s recommended discipline “unless to do so would foster a

tendency toward inconsistent dispositions for comparable conduct or would

otherwise be unwarranted.” D.C. Bar R. XI, § 9 (h)(1); see also In re Pierson, 690

A.2d 941, 946-48 (D.C. 1997). We are not persuaded by respondent‟s exceptions,

and thus impose the sanction recommended by the Board.
                                           3

                                           I.



      The disciplinary matter before us stems from what we had occasion five

years ago to style “the long and tortuous probate administration of Arnold

Lindsey‟s estate.” In re Estate of Lindsey, No. 09-PR-1201, Mem. Op. & J. at 1

(D.C. May 29, 2013). After over nine years of litigation, the Superior Court in

August 2009 removed respondent as the estate‟s personal representative, a position

to which he had been appointed in August 2000. Respondent appealed from his

removal and the simultaneous requirement that he reimburse the estate for

$51,312.32 in lost interest because of his failure to diligently collect and distribute

proceeds owed to the estate from the settlement of wrongful death and survival

actions. In affirming the trial court‟s action, this court found “no grounds . . . for

disturbing either the removal order or the order directing reimbursement.” Id. We

explained: “[Mr. Speights] offers no serious challenge to Judge [Rhonda] Reid

Winston‟s well-substantiated conclusion that his repeated non-compliance with

„the [Superior] Court‟s Orders [requiring distribution of assets and related filing of

accounts] and the attendant delays caused by [his non-compliance] prolonged the

administration of [the] estate and . . . caused at least one of the decedent‟s heirs and

his widow . . . to await that to which they were entitled,‟ and that in general he had

„failed to perform material duties of his office.‟” Id.
                                           4



      In the ensuing disciplinary proceedings brought by Disciplinary Counsel, the

Hearing Committee received documentary evidence from the lengthy probate

proceedings and heard respondent‟s testimony, then found that respondent had

committed each of the ethical violations charged, namely, failure to “provide

competent representation to a client,” D.C. R. of Prof. Conduct 1.1 (a), failure to

serve as personal representative “with skill and care commensurate with that

generally afforded to clients by other lawyers in similar matters,” id. 1.1 (b), failure

to “represent a client zealously and diligently within the bounds of the law,” id. 1.3

(a), and failure to “act with reasonable promptness in representing a client.” Id. 1.3

(c). Further, it found that he had “[e]ngage[d] in conduct that seriously interferes

with the administration of justice.” Id. 8.4 (d). These violations, the Hearing

Committee determined, were established by:



             proof by clear and convincing evidence of:
             [respondent‟s] prolonged delay in collecting . . . total
             payments of $575,000 from the three defendants [in the
             wrongful death and survival actions]; his claim that other
             lawyers represented the [e]state, after he himself had
             already discharged these lawyers; his extended failure –
             for approximately 17 months – to provide correct
             information to accountants for the [e]state; and his
             failures to comply with court orders, thereby prolonging
             administration of the [e]state . . . . Not only did
             [r]espondent‟s inaction over a significant period of time
             delay the collection of all the [settlement] funds for more
                                           5

              than two years, he also failed to distribute them promptly
              even after he collected them. After that, he ignored the
              court-approved arbitration award [providing for
              distribution of the funds among estate members], and
              delayed the final resolution of the [e]state in a futile
              effort to further enrich himself with legal fees that the
              court had not authorized.


      The Board, in concluding that substantial evidence in the record supported

these findings, unanimously agreed with the Hearing Committee that respondent

had “failed to make even the slightest effort to collect the amounts due to the

[e]state (even failing to negotiate checks sent to [his] law firm), failed to distribute

the assets (even when ordered by the court to do so), and multiplied and prolonged

the proceedings, ultimately costing the [e]state over $50,000 in interest.”



                                          II.



      In August of 2000, because of a dispute between family members of the

Lindsey estate, Judge Cheryl M. Long appointed respondent as personal

representative for the estate, having decided that “the best interests of this estate as

a whole require the appointment of a neutral member of the bar to serve as the sole

fiduciary.”   Despite his appointment specifically as a “member of the bar,”

respondent argues to us, as he did to the Board, that in representing the estate he

“did not perform the duties of counsel for the estate” (emphasis added), but instead
                                         6

was a “stakeholder or common [law] fiduciary” who, acting only “in the capacity

of” personal representative but not attorney, engaged other lawyers to pursue the

survivorship/wrongful death action and to “implement[ ] the proceeds of the

settlement” of that suit.



      In thus seeking to absolve himself of the ethical violations charged,

respondent tries to bring himself within our holding in In re Confidential, 664 A.2d

364 (D.C. 1995). There we held that an attorney who engaged in a “garden-variety

common law fiduciary relationship” had not acted “in his professional capacity as

an attorney admitted to practice” and thus was not subject to the ethical rules

governing legal practice. Id. at 367 (internal quotation marks omitted). In re

Confidential, to the contrary, demonstrates why respondent, as the court-appointed

“fiduciary” we recognized him to be in In re Estate of Lindsey, supra, at 2 (quoting

D.C. Code §§ 20-701 (a), -702 (2001)) – “responsible for „tak[ing] possession or

control of the decedent‟s estate‟ and taking „all steps necessary for [its]

management, protection, and preservation‟” – may not shield himself for his

failures behind the actions of the attorneys he employed and later discharged.



      In re Confidential concerned an attorney charged with commingling and

misusing clients‟ funds because of his actions as escrow agent in a real estate sale
                                          7

of which he was a principal, one of two sellers of the property. In concluding that

the ethical rule did not apply to his conduct, this court saw no indication of an

“attorney-client relationship” or that the attorney “was . . . acting in his

professional capacity” in serving only “as a stakes-holder” and principal in that

private commercial transaction.1 In re Confidential, 664 A.2d at 367. Indeed, the

transaction took place in Maryland, where the attorney was not admitted to the

practice of law. Id. at 364. The principle we gleaned from “our prior holdings” is

that the ethical rule “would apply only to transactions having a reasonable

relationship to an attorney‟s conduct in his professional capacity,” id. at 367:



             Thus, in two prior cases, we approved the imposition of
             discipline . . . on attorneys who were acting as court-
             appointed trustees or conservators. In the mishandling of
             funds, they breached a fiduciary duty not only to the
             beneficiaries but to the court itself and prejudiced the
             administration of justice. . . . [M]ore recently . . . we
             applied [the same ethical rule] to a misappropriation by
             an attorney from the estate of a minor whom the attorney
             was appointed to represent as guardian. With such court-
             appointed positions, an attorney unquestionably incurred
             the “high trust” described in [In re Addams, 579 A.2d
             190, 193 (D.C. 1990) (en banc)].

      1
        The attorney‟s conduct “involved no rendering of legal advice”; he “acted
without compensation, as an accommodation to the parties”; and (as the transaction
implicated a decedent‟s estate) he “undertook no role as an attorney for the estate
of the decedent.” In re Confidential, 664 A.2d at 367 (internal quotation marks
omitted).
                                         8


Id. 664 A.2d at 367.


      Respondent, although he engaged other attorneys to aid him, was positioned

no differently than the just-cited attorney-fiduciaries in representing the Lindsey

estate. That is to say, a lawyer in this jurisdiction who serves as the court-

appointed personal representative of an estate is held to the same ethical standards

as a lawyer representing a client. E.g., In re Hargrove, 155 A.3d 375, 376 (D.C.

2017) (regarding attorney appointed as personal representative, court accepts

Board‟s findings of fact as supported by substantial evidence and adopts its

recommended sanction); In re Fair, 780 A.2d 1106, 1107 & n.1 (D.C. 2001)

(same). Other jurisdictions are in accord. E.g., State ex rel. Okla. Bar Ass’n v.

Mansfield, 350 P.3d 108, 118 (Okla. 2015) (“Attorneys are subject to the [Rules of

Professional Conduct] regardless of what role they play in the administration of an

estate, and it makes no difference . . . that Respondent may not have technically

represented any client with regard to the administration of the [estate].”); In re

Goldsmith, 874 N.Y.S.2d 28 (N.Y. App. Div. 2009). Respondent, in short, was not

engaged in “an ordinary, garden-variety common law fiduciary relationship” to the

Lindsay estate, In re Confidential, 664 A.2d at 367, but held duties also “to the

court itself” by virtue of his appointment as a member of the Bar. Id. He was thus

answerable to the disciplinary system for his conduct.
                                         9



                                        III.



      Besides mistakenly arguing that others than himself were responsible for the

timely collection and distribution of funds owed the estate, respondent takes issue

with his asserted failure to abide by the terms of the arbitration award that was

entered in 2005 to resolve disagreements over the allocation of settlement proceeds

and related fees for legal and personal representative services. Respondent argues

that the trial court‟s order appointing the arbitrator “did not follow the law in the

District” because “the parties” – including or especially heirs to the estate – “did

not consent in writing to the appointment of a Master/Arbitrator” as required by

court rules, thus making the award “non-binding” in nature. This argument comes

too late.   In the 2013 appeal from his removal as personal representative,

respondent made the identical argument that defects in the appointment of the

arbitrator excused his failure to adhere to the terms of the arbitration award. This

court‟s rejection of that argument, and of all other objections to respondent‟s

removal, cannot now be re-litigated. Moreover, our own review of the probate

record reveals ample support for Judge Reid Winston‟s finding in her August 2007

order that the order appointing the arbitrator “was entered without any objection

filed by any of the parties, including the personal representative,” and for Judge
                                         10

Jose M. Lopez‟s earlier October 2006 determination that “[n]o motion [objecting]

has ever been filed as to the order for arbitration and as to the arbitrator‟s award.”

On the merits, the trial court appointed the arbitrator here as “master” to “perform

duties consented to by the parties.” Super. Ct. Civ. R. 53 (a)(2)(A). Contrary to

respondent‟s suggestion, nothing in the rule requires this consent to have been in

writing.



                                         IV.



      Besides disputing the violations he was found to have committed,

respondent broadly challenges the fairness of the proceeding conducted by the

Hearing Committee. Relying mainly on In re Thorup, 432 A.2d 1221 (D.C. 1981),

he argues that Disciplinary Counsel‟s failure to call any witnesses except

respondent, instead relying on the record of the In re Estate of Lindsey probate

proceedings, essentially denied him the “chance to brief or confront” the ethical

misconduct and amounted to shifting the burden to him to refute them. We are not

persuaded.



      The Hearing Committee in Thorup, we concluded there, had required the

respondent-attorney effectively to disprove a charge of client neglect based on “the
                                         11

mere introduction of the docket sheet” from a case in which he had represented a

criminal defendant, 432 A.2d at 1226:


               [T]he Hearing Committee accepted a copy of the docket
               … into evidence and ruled that [it] established a prima
               facie case against respondent. The docket showed only
               that respondent had failed to file a suppression motion
               and that a motion had subsequently been filed by
               successor counsel and granted by the trial court. The
               Committee then switched the burden to respondent to
               explain his actions. After hearing from him, the
               Committee found that his records and recollections were
               insufficient [ – ] an assumed misconduct neither charged
               nor founded in the Disciplinary Rules.

Id. at 1225.


      The present case bears no resemblance to Thorup. Besides respondent‟s

testimony, the record before the Hearing Committee included some thirty-four

exhibits introduced by Disciplinary Counsel and another thirty-six submitted by

respondent – in the aggregate, the great bulk of the hearing-transcripts and court

orders that made up the years-long administration of the Lindsey estate. During

those trial court proceedings, respondent was given full opportunity to dispute the

claims that arose about his failure to timely collect and distribute the settlement

proceeds. As just one example, before Judge Reid Winston removed him as

personal representative, she referred the matter to the auditor-master who

conducted an evidentiary hearing in which respondent and his then-counsel
                                         12

participated; only after receipt of the master‟s report did the judge order

respondent‟s removal. Respondent cannot credibly argue that those proceedings,

and testimony by the same witnesses, had to be reproduced wholly or in part at the

disciplinary hearing before the Hearing Committee could assess his behavior in

light of the misconduct charges and find, as it did, that Disciplinary Counsel

proved them by clear and convincing evidence. Although respondent‟s testimony

was an opportunity for him to justify his actions (or inactions) and offer mitigating

circumstances if a sanction was deemed necessary, at no point was it made to

appear that his own “records and recollections” would be required to do service for

a failure of proof by Disciplinary Counsel. Thorup, 432 A.2d at 1225.



      We reject, as well, respondent‟s claim that it was improper for the Hearing

Committee, and later the Board, to evaluate the truthfulness of the testimony he

gave at the hearing and consider what the Committee found were false statements

as an aggravating factor in deciding what sanction to recommend. This is not, as

respondent suggests, a case of “amend[ing]” the disciplinary charges based on “the

testimony of the accused.” The relevance to proper sanction of “false testimony

before the Hearing Committee,” In re Cleaver-Bascombe, 892 A.2d 396, 412 (D.C.

2006), has long been recognized, see In re Kanu, 5 A.3d 1, 15, 17 (D.C. 2010); In

re Goffe, 641 A.2d 458, 464-66 (D.C. 1994), and only clairvoyance would enable
                                         13

Disciplinary Counsel to charge such conduct in a way “known [to the respondent]

before the proceedings commence.”



                                         V.



       We consider, finally, the Board‟s recommendation of a two-year suspension

coupled with a required showing of fitness. The Hearing Committee, besides the

fitness requirement, had recommended a one-year suspension, expressly not taking

account of the then-pending matter in Speights I as prior discipline. The Board in

turn followed the rule of In re Thompson, 492 A.2d 866, 867 (D.C. 1985), and

considered together the two separately docketed matters pending “at different steps

of the disciplinary process” in deciding what sanction to recommend.



      The Board and the Hearing Committee both recognized that, in the Hearing

Committee‟s words, the normal range of sanctions we have imposed is from thirty

days to six months for “cases involving incompetence, neglect, conduct seriously

interfering with the administration of justice, and prior discipline . . . .” But both

bodies found a special aggravating factor here in the Committee‟s finding, which

the Board accepted, that portions of respondent‟s testimony at the present
                                         14

disciplinary hearing “were simply incredible.”2 Moreover, the Board considered it

“especially troubling that [r]espondent testified falsely to the Hearing Committee

[in this matter] in April 2016, after the Speights I Hearing Committee found in

June 2015 that he testified falsely there and recommended an increased sanction as

a result” (emphasis by Board). In Speights I, this court too noted the Hearing

Committee‟s finding that “respondent‟s explanations for his actions [a combination

of mishandling and neglecting the client‟s personal injury suit were] unworthy of

credence,” and we found this “evasiveness and dishonesty” to be an aggravating

factor justifying the enhanced sanction recommended. 173 A.3d at 100, 102.




      2
          Specifically, the Hearing Committee found “intentionally false” testimony
in (1) respondent‟s assertions: (a) that the lawyers he had originally retained to
assist him as personal representative “remained the lawyers for the [e]state” despite
court findings that he had discharged them; (b) that Judge Lopez‟s order
appointing an arbitrator “falsely reported . . . that all parties had consented to
arbitration” (a determination we have found amply supported by the probate
record); (c) that he had no duty to collect one settlement payment (from a company
named Affordable Light and Sound) over the eighteen-month period between when
it was due and when it was paid; and (d) that the auditor-master had made a
number of “false findings” despite approval of those findings by Judge Reid
Winston and implicitly this court on appeal; and, beyond these, in (2) respondent‟s
“conflicting,” indeed contradictory, testimony about his receipt (and not) of the
check from Affordable Light and Sound.
                                          15

      “Generally speaking, if the Board‟s recommended sanction falls within a

wide range of acceptable outcomes, it will be adopted and imposed.”               In re

Hallmark, 831 A.2d 366, 371 (D.C. 2003) (internal quotations omitted). Here the

Board found most apposite our prior decision in In re Bradley, 70 A.3d 1189, 1195

(D.C. 2013), in which we imposed a two-year suspension on an attorney whose

testimony included “an intentional falsehood designed to mislead the Hearing

Committee” and who beforehand had “knowingly and repeatedly caused serious

damage to her probate clients through her neglect.” Id. The Board recognized that

respondent‟s “two matters [Speights I and this case] did not involve the sort of

extreme, intentional neglect of multiple court-appointed clients at issue in

Bradley,” but nonetheless found comparability in that respondent “neglected two

client matters, resulting in prejudice to both clients, refused to accept responsibility

for his misconduct, and most importantly, has testified falsely to two different

Hearing Committees.”3 The Bradley court cited previous cases in which serious


      3
           Respondent argues that the Hearing Committee‟s findings of false
testimony in reality sought to sanction him “for his alleged failure to admit his
wrong doing” – for continuing to maintain in good faith, inter alia, that he served
as trustee but not counsel to the estate once he retained other lawyers, who never
formally exited the case, to serve as counsel. But while “[a] respondent may
certainly litigate vigorously against [Disciplinary] Counsel,” In re Martin, 67 A.3d
at 1055 n.25, the statements the Hearing Committee found respondent had made
falsely were in the face of contrary findings of the Superior Court upheld by this
court in In re Estate of Lindsey, and included assertions of mendacity by court
                                                                      (continued…)
                                         16

neglect combined with aggravating circumstances had resulted in suspension for

two years, namely: In re Lyles, 680 A.2d 408, 418 (D.C. 1996); In re Mintz, 626

A.2d 926, 928 (D.C. 1993); In re Delate, 598 A.2d 154, 161 (D.C. 1991). See also

In re Alexander, 496 A.2d 244 (D.C. 1985); In re Thorup, 461 A.2d 1018 (D.C.

1983); In re Sheehy, 454 A.2d 1360 (D.C. 1983).



      Altogether, then, we conclude that the Board‟s recommended sanction is

consistent with our prior decisions concerning similar conduct and not otherwise

unwarranted. D.C. Bar R. XI, § 9 (h)(1). Respondent asserts, and we have no

reason at all to question, that for many years he engaged in the honorable,

unblemished practice of law in this jurisdiction. But the pattern of conduct leading

to his removal as personal representative in this case, together with his recent prior

discipline and proven lack of candor in two disciplinary proceedings, persuades us

that the sanction recommended by the Board is the correct one.




 (…continued)
officers including the auditor-master. The Board could properly conclude that at
some point an attorney‟s obdurate refusal to accept facts bearing on his
accountability for neglect reflects as much on his present fitness to practice law as
does outright falsehood. See In re Martin, 67 A.3d at 1053 (citing as a factor
relevant to sanction “whether the attorney has acknowledged his . . . wrongful
conduct”).
                                        17

    Accordingly, respondent Nathaniel H. Speights is hereby suspended from the

practice of law in the District of Columbia for a period of two years effective from

the date of his interim suspension in this matter, and must demonstrate fitness as a

condition of resuming practice.     For purposes of reinstatement, respondent‟s

suspension will be deemed to run from the date he files the affidavit required by

D.C. Bar R. XI, § 14 (g).



                                          So ordered.
