DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

:

In the Matter of: : : : FELIX B. OTCHERE, : Bar Docket No. 271-05 : (Prior Proceedings: Nos. 95-BE-42,

: 95-BG-624; Bar Docket Nos. 15-95, Petitioner. : 206-95 (D.C. June 6, 2006) (Schwelb, J.,

: King, J. and Kern, J.)

REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY

Felix B. Otchere (“Petitioner”), who was disbarred in 1996, petitions for reinstatement to

the practice of law in the District of Columbia. The matter was heard by an Ad Hoc Hearing

Committee on March 1, 2006, with a further hearing on June 4, 2007, following a remand from

the Board. In a report dated October 18, 2006, and supplemented on November 28, 2007, the

Hearing Committee found by clear and convincing evidence that Petitioner is fit to resume the

practice of law and should be reinstated, subject to certain conditions. Neither Bar Counsel nor

Petitioner has excepted. The Hearing Committee, which consisted of Carmen A. Cintron

(Chair), Gene Sofer (Public Member), and Linda S. Stein (Attorney Member), did an excellent

job, providing us with clear, detailed and well-supported reports. The Board on Professional

Responsibility (the “Board”) adopts the attached Reports and Recommendations of the Hearing

Committee, recommending an added condition of reinstatement.

The Hearing Committee’s original Report details the facts and circumstances giving rise

to the Petition for Reinstatement. In brief, Petitioner was reciprocally disbarred by the District of

Columbia Court of Appeals following his disbarment on consent by the Commonwealth of

Virginia, based on six complaints alleging extensive misconduct, including acts of

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misappropriation in two matters for which Petitioner pled guilty to criminal charges of

embezzlement and false pretenses. On the Petition for Reinstatement, the Hearing Committee

found that Petitioner was seriously impaired by alcoholism at the time of his misconduct, which

was “highly related to his abuse of alcohol.” Hearing Committee Report dated October 18, 2006

(hereafter “HC Report”) at 28. At the time of the first reinstatement hearing, Petitioner had

maintained sobriety for 11 years and made substantial restitution to the clients whom he

wronged. Since 1997, he had repaid $15,000 of the more than $20,000 that he had

misappropriated and was continuing to make payments at the time of the reinstatement hearing.

HC Report ¶¶ 18-23. Petitioner was also in the process of paying tax obligations for 1998 and

1999, years in which he had failed to file his personal tax returns. Id. ¶ 38. Based on this and

other factors, including the eight witnesses who testified for Petitioner, the Hearing Committee

determined that Petitioner had met his burden to establish, pursuant to In re Roundtree, 503 A.2d

1215 (D.C. 1985), that he is rehabilitated and once again fit to resume the practice of law.

However, the Report also found that, between June 2000 and October 2004, Petitioner

had a total of 42 checks returned for insufficient funds. HC Report ¶ 39. Because Bar Counsel’s

examination of Petitioner’s bank records ended at January 2005, the record did not reveal

whether Petitioner bounced any checks more recently or otherwise continued to have trouble

managing his personal finances. Id. ¶ 41. The Board determined that “the extent of Petitioner’s

financial mismanagement, and whether it persists to the present time, is of particular concern

because the conduct for which Petitioner accepted disbarment involved repeated instances of

financial improprieties with client funds due to Petitioner’s straitened personal finances.” Order,

In re Otchere, Bar Docket No. 271-05 (BPR Dec. 7, 2006) (the “Board Order”) at 2-3. In light

of this “troubling and incomplete evidence in the record regarding [Petitioner’s] prolonged

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problems in managing his personal finances, which bears directly on the third of the Roundtree

factors, the attorney’s post-discipline conduct, including steps taken to remedy past wrongs and

prevent future ones,” the Board, by order dated December 7, 2006, remanded the case for

additional fact-finding regarding the returned checks, whether they involved Petitioner’s

restitution obligations, whether they have since been made good and whether there were

subsequent returned checks. Id.

After conducting the prescribed fact-finding at a hearing on June 4, 2007, the Hearing

Committee issued a Supplemental Report dated November 28, 2007 (the “Supplemental HC

Report”). The Hearing Committee found that Petitioner has now made full restitution to his

clients and has paid his outstanding tax obligations. Supplemental HC Report ¶¶ 12-17. He has

not had any checks returned since the end of 2004. Id. ¶ 6-7, 10. In 2006, however, he overdrew

his personal checking account on five occasions through the use of his debit card. Id. ¶¶ 7-10.

From January 2007 through July 17, 2007, Petitioner had no negative balances in his bank

account. Id. ¶ 10.

In reviewing the original Hearing Committee Report, the Board concluded that Petitioner

had met his burden of clear and convincing evidence with respect to all but the third of the

Roundtree factors. Board Order at 2. We now adopt the findings of fact in the Supplemental

Hearing Committee Report and determine that Petitioner has satisfied the third factor and has

therefore demonstrated by clear and convincing evidence that he is fit to resume the practice of

law. Petitioner has made a remarkable come-back, and we commend him for the sustained and

forthright manner in which he has dealt with the causes that led to his misconduct, rehabilitated

himself, and rectified the harm that resulted from his misconduct.

The Board recommends that Petitioner be reinstated. In recognition of the issues that

Petitioner has encountered in managing his personal finances even while sober, the Board

recommends, pursuant to D.C. Bar R. XI, § 16(f), that Petitioner's reinstatement be subject to the

following conditions:

1. That Petitioner continue to meet with the D.C. Bar's Practice Management Advisory

Service for six months and follow its recommendations and that he file a certification that he has

complied with this condition with the Board and the Court, with a copy to Bar Counsel;

2. That, within six months of reinstatement, he take a course in personal financial

management that includes instruction on the management of an individual's personal bank

accounts, such as keeping track of account balances by recording checks, debits, deposits and

withdrawals and that he file a certification that he has complied with this condition with the

Board and the Court, with a copy to Bar Counsel;

3. That, if he resumes the practice of law as a solo practitioner, or begins practice in any

setting that requires him to assume responsibility for the funds of clients or third parties, he shall

notify the Board at least one month before of his intention to do so, and upon such notification,

the Board shall appoint a member of the District of Columbia Bar to review these financial

accounts, as well as any law firm operating accounts for which he is responsible, for a period of

two years. See In re Brown, 649 A.2d 835 (D.C. 1994) (per curiam).

BOARD ON PROFESSIONAL RESPONSIBILITY

By:

Dated: fEB 15m

All members of the Board concur in this Report and Recommendation.

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DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

AD HOC HEARING COMMITTEE : In the Matter of: : : : Bar Docket No. 2005-D271 FELIX B. OTCHERE, Esquire, : Prior Proceedings: Nos. 95-BE-42, : 95-BG-624; Bar Docket Nos. 15-95, : 206-95 (D.C. June 6, 2006) (Schwelb, Petitioner. : J., King, J. and Kern, J.) :

SUPPLEMENTAL REPORT AND RECOMMENDATION

I. INTRODUCTION

Based upon the evidence presented at the March 1, 2006 hearing and June 4, 2007

hearing on remand, the Ad Hoc Hearing Committee concludes that Petitioner has met his burden

of showing, by clear and convincing evidence, that under D.C. Bar Rule XI, § 16(d) and the

Roundtree factors, that he should be reinstated to the Bar of the District of Columbia, subject to

certain conditions.

II. PROCEDURAL HISTORY

Petitioner was admitted to the District of Columbia Bar (“D.C. Bar”) in December 1981

and was also admitted to the Commonwealth of Virginia Bar. The Commonwealth of Virginia

revoked Petitioner’s license to practice law in Virginia on November 15, 1994 based upon

misconduct that involved inter alia, criminal convictions, neglect, dishonesty, failure to return

unearned fees, and the misappropriation of client funds. The District of Columbia Court of

Appeals (the “Court”) ordered that Petitioner’s license to practice law in the District of Columbia

be revoked as reciprocal discipline on June 6, 1996.

In August 2005, Petitioner filed a petition for reinstatement (“Petition”) to the D. C. Bar.

A hearing on the petition was held on March 1, 2006 before the Ad Hoc Hearing Committee (the

“Hearing Committee”). On October 18, 2006, the Hearing Committee issued a Report and

Recommendation (the “Report”) in which it recommended that Petitioner be reinstated to the

D.C. Bar subject to certain conditions. Neither Bar Counsel nor Petitioner excepted to the

Report.

The Board on Professional Responsibility (the “Board”) issued an order in this matter on

December 7, 2006 (“BPR Order”). In that order, the Board concluded that Petitioner had met his

burden of showing by clear and convincing evidence that he satisfied four of the five factors for

reinstatement under In re Roundtree, 503 A.2d 1215 (D.C. 1985). However, the Board found

that there was “troubling and incomplete evidence in the record regarding his prolonged problems

in managing his personal finances, which bears directly on the third of the Roundtree factors, the

attorney’s post-discipline conduct, including steps taken to remedy past wrongs and prevent

future ones.” BPR Order at 2.

In light of this concern, the Board remanded the case to the Hearing Committee, “to

conduct additional fact-finding regarding the checks returned during the period June 2000 to

October 2004 and any checks returned since that time, and to make a recommendation to the

Board regarding the significance of the bad checks on Petitioner's ability to handle entrusted funds

in the future.” Id. at 3. Specifically, the Board enumerated four areas requiring further inquiry by

the Hearing Committee: “1) The circumstances surrounding all returned checks, including, but

not limited to, whether the checks were for the payment of Petitioner’s restitution obligations to

clients, to the Virginia Security Fund or to the IRS for unpaid taxes. 2) Whether the returned checks

have since been made good, i.e. whether Petitioner has since discharged his payment obligations.

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3) Whether and to what extent Petitioner has had any checks returned from January 2005 until

the present, the circumstances of the bounced checks and whether the returned checks have been

made good. 4) In considering whether to condition reinstatement on Petitioner’s continued

compliance with the payment schedules that Petitioner has adopted for restitution to clients and

payments to the IRS, whether, in light of Petitioner’s current financial circumstances, those

schedules are reasonable and practical.” Id. at 3-4.

The Board also recommended that the Hearing Committee leave the record open if it

concluded after the supplemental fact-finding that Petitioner had met his burden under the third

Roundtree factor so that the Petitioner and Bar Counsel can make the most current information

available as the case progresses. Id. at 4, n. 2.

To facilitate the supplemental hearing, the Hearing Committee issued a pre-hearing order

in April 2007 directing Petitioner to submit an affidavit elaborating on the four areas discussed in

the Board Order. See April 9, 2007 HC Order. Petitioner submitted that affidavit on May 16,

2007 and his exhibits (PX) O through X on May 14, 2007. Prior to the hearing, Bar Counsel

submitted exhibits (BX) 17, 18, and 19.

The hearing on remand (the “2007 hearing”) on the Petition was held on June 4, 2007

before the Hearing Committee, composed of Carmen Ana Cintron, Esquire, Chair, Mr. Gene

Sofer, public member, and Linda Stein, Esquire. Petitioner represented himself, and Asma Naeem,

Assistant Bar Counsel, appeared on behalf of the Office of Bar Counsel. At the hearing,

Petitioner supplemented exhibits PX P and PX U and submitted another exhibit PX Y. Transcript

of June 4, 2007, hearing (“Tr. II”) at 7. At the hearing, Bar Counsel supplemented Petitioner’s

exhibit PX O. Tr. II at 6. The Hearing Committee received Petitioner’s exhibits PX O through Y

and Bar Counsel’s exhibits BX 17, 18, and 19 into evidence. Tr. II at 6, 42, 43. At the hearing,

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Bar Counsel presented another exhibit -- BX 20 – but failed to move that exhibit into evidence. In

its post-hearing brief, Bar Counsel asks the Hearing Committee to receive BX 20 into evidence.

The Hearing Committee grants Bar Counsel’s request and receives BX 20 into evidence. Also

during the hearing, the Hearing Committee noted that it would allow the record to remain open

to receive more current financial information from Petitioner pursuant to the Board's December

2006 Order. Tr.II at 5-6.

At the June 4, 2007 hearing, Petitioner testified on his own behalf and Bar Counsel called

one witness -- Bar Counsel Investigator Kevin E. O'Connell.

On July 16, 2007, Petitioner submitted his Post-Hearing brief (“P Brief II”) and attached

additional documents in an appendix to his brief, including (1) a June 14, 2007 e-mail from Keely

Parr, Director of the D.C. Bar’s Practice Management Advisory Service (PMAS), regarding her

meeting with Petitioner to review Petitioner’s personal financial recordkeeping, (2) excerpts from a

June 8, 2007 credit report from Equifax, (3) a July 8, 2007 credit report from Experian, and

(4) excerpts from a July 10, 2007 credit report from TransUnion. Subsequent to the June 4

hearing, Petitioner submitted other more current financial records to Bar Counsel and the Hearing

Committee, including the entire June 8, 2007 credit report from Equifax (under cover letter dated

June 13, 2007), his bank statement for 5/16/07-6/15/07 (under cover letter dated June 25, 2007),

his bank statement for 6/16/07-7/15/07 (under cover letter dated July 26, 2007), and his Certificate

of Completion of Accounting Fundamentals course from Northern Virginia Community College

(under cover letter dated August 3, 2007). The Hearing Committee receives these additional

documents submitted by Petitioner into evidence.

On August 2, 2007, Bar Counsel submitted its Post-Hearing brief (B Brief II) and attached

additional Bar exhibits BX 20 through 23. Exhibits BX 21, 22, and 23 are Petitioner's bank

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statements from PNC Bank for the months of May, June, and July 2007, respectively. Bar Counsel

requested that these exhibits be moved into evidence. The Hearing Committee grants Bar

Counsel’s request and receives BX 21-23 into evidence. In its brief, Bar Counsel agreed that

Petitioner has met his burden of establishing that he is fit to resume the practice of law. Bar

Counsel Br. at 9. However, Bar Counsel recommends that Petitioner’s reinstatement be subject to

the requirement that he take a personal finances management class and a continuing legal

education course for account management within twelve months of reinstatement. Id. at 10.

III. FINDINGS OF FACT

A. Circumstances Surrounding Returned Checks Between June 2000 and July 2007

1. Petitioner had two checks returned for insufficient funds in 2000, 19 checks

returned for insufficient funds in 2001, 13 checks returned for insufficient funds in 2002, five

checks returned for insufficient funds in 2003, four checks returned for insufficient funds in

2004, and no checks returned for insufficient funds in 2005, 2006 or January through July 17,

2007. Tr. II at 16-22; BX 14, 17, 21, 22, 23.

2. Petitioner did not provide complete information (i.e., the name of the payee)

regarding the checks that were returned for insufficient funds from 2000 through 2004 because

he does not have copies of the checks that he wrote from June 2000 to July 2005. Petitioner’s

Affidavit in Response to the Pre-Hearing Order of April 9, 2007 (“Affidavit”) at 1. However,

Petitioner did provide his monthly bank statements from June 2000 through December 2004

which specify for each check written in that time period the following information: the amount

of the check, the date the check was submitted to the bank for payment, and whether the check

was returned for insufficient funds. PX O. Petitioner also attempted to identify the likely payee

for the returned checks in the Affidavit. Affidavit at 2-16.

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3. Petitioner's monthly bank statements reveal that the amounts of the checks that

were returned for insufficient funds varied from as little as $20.00 (Check #335, February 12,

2001, PX O, p.58) to as much as $1000.00 (Check #550, December 10, 2001, PX O, p.72).

4. When asked to explain why these checks were returned during the March 1, 2006

hearing, Petitioner responded, “I wasn’t very responsible in maintaining my account . . . my

practice was to send out checks every few days before payday, hoping that, you know, they

would coincide. It didn’t always work out, and then many times I ended paying overdraft fees

and insufficient fund fees.” March 1, 2006 Hearing Transcript (“Tr.”) at 371-72.

5. Petitioner testified that he no longer sends out checks a few days before payday

and we credit that testimony. Tr. II at 89-90.

6. In 2005, Petitioner was not charged any insufficient funds fees and had no

negative balances in his bank account. Tr. II at 19-20; BX 19 at 1.

7. While Petitioner did not have any checks returned in 2006, he was charged an

insufficient fund fee nine times during the year because he had insufficient funds to cover debits

to the bank account. Tr. II at 20-21; BX 19 at 2. Petitioner had a negative balance in his bank

account five times during 2006, including May 15, June 5, June 9, July 7, and November 27,

2006. Tr. II at 21; BX 19 at 1.

8. When asked to explain the circumstances of the debit card overdrafts in 2006,

Petitioner testified that “I had this problem with my debit card, because I thought that after

making the deposits, I was okay. It wasn’t like I intentionally went out and spent money that I

didn’t have or wrote checks when I knew there was no money in my account. That wasn’t the

case. It was just a matter of deposits that hadn’t cleared . . .” Tr. II at 86-87.

9. Petitioner discussed the overdrafts with candor and accepted responsibility for

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them. Tr. II at 85-89.

10. From January through July 17, 2007, Petitioner was not charged any insufficient

funds fees and he had no negative balances in his bank account. Tr. II at 21-22; BX 17, 21, 22,

23.

11. Petitioner has paid off and cancelled all but two of his credit cards. Tr. II at 39-

40; PX W; June 8, 2007 updated credit report from Equifax. As of June 8, 2007, the balance on

Petitioner’s two open credit cards was $387 and $341, respectively. See June 8, 2007 updated

credit report from Equifax.

B. Petitioner’s Restitution to Clients, the Virginia Security Trust Fund, and Internal Revenue Service Payments

12. Petitioner owed restitution to the following – Arlington County Circuit Court for

Ms. Okoye, Virginia State Bar Client Protection Fund for the Holt and Sakayi matters, Dr.

Michael Redlich, Ms. Isatu Bangura and Mr. Abadir. October 18, 2006 Report, Findings of Fact

18-23.

13. Petitioner's restitution obligations have been discharged. PX E, P. He was

released from probation on April 17, 2007 in part because his court costs and restitution

obligations had been paid in full. However, Petitioner attested that his restitution payment for

the Jessie Holt case which he paid to the Clerk of the Court was paid to the Law Library account

rather than the Virginia State Bar Client Protection Fund by mistake and despite his efforts to get

the Clerk’s office to rectify the situation, the money had not yet been transferred to the Virginia

State Bar Client Protection Fund by the time of the hearing. Petitioner testified at the hearing

that he would continue to pursue getting the money transferred to the correct account. However,

because the Holt restitution monies are not in the possession of the Virginia State Bar Client

Protection Fund, Petitioner attested that he is concerned that interest is continuing to accrue on

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the Holt restitution payments. Petitioner continues to pay the Virginia State Bar Client

Protection Fund $200.00 per month to cover interest that may be continuing to accrue for the

Holt matter. Tr. II at 37-39, 46, 51-53; PX P. Petitioner testified that he would provide Bar

Counsel and the Hearing Committee with any letter he received notifying him that this obligation

had been completely taken care of. Tr. II at 52-53. No such letter has been provided to the

Hearing Committee as of the date of this report.1

14. While it is unclear who the payee was for checks written prior to July 2005, there

is no evidence that restitution payments were made with dishonored checks. Many of

Petitioner’s restitution payments to the Circuit Court of Arlington County (for the Okoye matter)

and the Virginia State Bar Client Protection Fund (for the Holt and Sakyi matters) were made with

money orders, thereby eliminating the possibility that Petitioner paid with checks that were later

dishonored. PX E, P. At the hearing, Petitioner testified, “None of [the checks] were for

restitution because, as I indicated, all those restitution payments were made by money order, and

I think my exhibit show that …” Tr.II at 33-34. Petitioner has submitted receipts for many, if

not all of these money orders. PX E. Petitioner paid restitution to Michael Redlich, M.D. in the

amount of $530.00 in 2005, a year in which he had no dishonored checks. PX E2.

15. There is no evidence that payments to the Internal Revenue Service were

made with any dishonored checks. With respect to the untimely payment of his taxes for

1998 and 1999, Petitioner testified that he paid those amounts with checks that were honored.

PX G; Tr.II at 33-34, 48. Specifically, Petitioner stated, “the payments were for a period during

which there was no record of any bounced check.” Tr.II at 33-34. His federal and state 1 The Hearing Committee encourages Petitioner to inform the board of his efforts to redirect the restitution payments to the Virginia State Bar Client Protection Fund and to seek leave of the Board to supplement the record with any documentary evidence that shows that the Holt restitution payment has been satisfied.

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tax obligations for all other years have been satisfied and there is no evidence that he

paid any of them with dishonored checks. Tr.II at 48-50; see PX F, H, Q, R, S.

C. Whether the Returned Checks Have Been Made Good

16. There is no evidence that suggests Petitioner has any outstanding

obligations for dishonored checks. Petitioner stated that most of the dishonored checks were

made to credit card companies. Affidavit at 19. Any dishonored checks to credit card

companies have been made good as evidenced by Petitioner’s June 8, 2007 credit report.

17. Petitioner attested that he has paid off all dishonored checks. Affidavit at 19.

Considering that the last check overdraft occurred in 2004, all returned checks appear to have

been made good.

D. Whether Petitioner’s Current Restitution and IRS Payment Schedules Are Reasonable and Practical

18. As explained above, Petitioner has discharged all of his restitution

obligations. PX E, P; Tr.II at 39-40. Consequently, the issue regarding the

reasonableness of Petitioner’s payment schedules for restitution and to the IRS is moot.

E. Petitioner's Remedial Efforts

19. Petitioner has not had a check returned for insufficient funds since October 2004

and he has not had any overdrafts since November 2006. BX 14, 17, 19, 21, 22, 23.

20. Subsequent to the March 2006 hearing, Petitioner took advantage of a benefit

offered at his firm to talk to a financial advisor for an hour regarding his financial planning,

including how to keep track of his accounts and finances. The financial advisor helped Petitioner

make up a budget and Petitioner has been able to follow the budget. Tr. II at 35-36, 59-63.

21. At the hearing, Petitioner admitted that he was “unsure of what he was supposed to

do [in terms of improving the managing of his personal finances but] that he would seek out help

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wherever possible.” Tr.II at 93.

22. Since the June 4, 2007 hearing, Petitioner has met with Ms. Keely Parr of the

PMAS in an effort to learn how to keep an accurate record of his bank account balance. P Brief

II at 6.

23. Additionally, Petitioner testified at the 2007 hearing that he had registered for an

accounting fundamentals course at Northern Virginia Community College and on August 2, 2007

he completed that course. Tr.II at 41-42, BX20, Petitioner’s Certificate of Completion of

Accounting Fundamentals course from Northern Virginia Community College.

24. If he is reinstated, Petitioner is not planning on going into private practice. He

plans to work as a lawyer in a firm. Tr. II at 58-59.

IV. CONCLUSION

Petitioner has made significant improvements in handling his personal finances. He has not

written a bad check in three years and has not had a bank overdraft for almost a year. Given the

improvement in his handling of his personal finances, the Hearing Committee concludes that

Petitioner has satisfied the third-prong of the Roundtree factors relating to the attorney’s conduct

since discipline was imposed, including steps taken to remedy the past wrongs and prevent future

ones. Given that Petitioner has satisfied all of the Roundtree factors, he has met his burden of

establishing that he is fit to resume the practice of law and the Committee recommends that he be

reinstated. However, given the issues that Petitioner had in managing his personal finances in the

2000 through 2006 time period, the Committee recommends that his reinstatement be subject to the

following conditions, some of which were set forth in our October 18, 2006 decision:

1. That he agree to continue to meet with the D.C. Bar's Practice Management

Advisory Service for six months and follow its recommendations.

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2. That he take a course in personal financial management within six months of

reinstatement that includes instruction on the management of an individual’s personal bank

accounts and how to keep track of personal bank account balances in terms of debits, checks, and

other withdrawals. The Accounting Fundamentals course that Petitioner completed in August

2007 does not fulfill this condition because that course did not focus on personal financial

management.

3. That he take a continuing legal education course in account management within

six months of reinstatement.2

The recommended conditions are similar to the ones imposed on the attorney in In re

Robinson, 915 A.2d 358 (D.C. 2007). In a prior decision, the District of Columbia Court of

Appeals (the “Court”) remanded the case to the parties for additional briefing on, inter alia, the

issue of whether an attorney should be reinstated in light of the “perceived need to impose

financial monitoring and other conditions to protect the public.” Id. at 360. The Court

ultimately reinstated the attorney, who had a lengthy history of overdrafts and poor financial

decisions, because the attorney has shown improvement in managing his finances (a thirteen-

month period of no overdrafts) and was candid during the reinstatement process. However, the

Court also imposed the conditions that he enroll in and complete a financial management course,

and that he meet with the D.C. Bar's Practice Management Advisory Service. Id. at 361, 370. In

doing so, the Court cited the Board's explanation that the conditions “are intended not to cure a

deficiency in Petitioner's reinstatement showing, but to add an extra measure of protection to

2 Since Petitioner has completed his restitution to his clients, the Hearing Committee believes the first condition for reinstatement recommended in its October 18, 2006 report is no longer necessary.

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assure Petitioner's continued fitness." Id. at 361. Similarly, in this case, the Committee

recommends the above conditions because they will assist Petitioner in the handling of entrusted

funds and protect the interests of any potential clients should he return to private practice.

AD HOC HEARING COMMITTEE

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Carmen A. Cintron Chair

$ $ f d i d O T r & ene Sofer

{d&dm.. inda S. Stein

NOV 2 8 2007

DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

AD HOC HEARING COMMITTEE In the Matter of: FELIX B. OTCHERE, Petitioner.

: : : : : :

Bar Docket No. 271-05 Prior Proceedings: Nos. 95-BE-42, 95-BG-624; Bar Docket Nos. 15-95, 206-95 (D.C. June 6, 1996) (Schwelb, J., King, J. and Kern, J.

REPORT AND RECOMMENDATION

INTRODUCTION

The Committee concludes that Petitioner has met his burden of showing, by

clear and convincing evidence, that under D.C. Bar Rule XI, §16(d) and the Roundtree

factors, he should be reinstated to the Bar of the District of Columbia. Petitioner has

met his burden to show that he is fit to resume the practice of law. However, in light of

Petitioner’s prior conduct concerning his finances the Committee recommends that

certain conditions listed below be imposed on his reinstatement. The conditions are

designed to help Petitioner reenter the legal profession while protecting the public. It is

noted that in reaching the decision to recommend conditions the Committee took into

account the fact that Petitioner stated that his immediate plan does not involve going

into private practice.

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I. BACKGROUND

Petitioner was admitted to the District of Columbia Bar in December 1981. The

Commonwealth of Virginia revoked Petitioner’s license to practice law in Virginia on

November 15, 1994. Bar Exhibits (“BX”) 2, 3. On June 6, 1996, the District of

Columbia Court of Appeals (the “Court”) ordered that Petitioner’s license to practice in

the District of Columbia be revoked as reciprocal discipline. BX 5. Petitioner’s

underlying misconduct that lead to his disbarment involved criminal convictions,

neglect, dishonesty, failure to return unearned fees, and the misappropriation of client

funds.

According to the Court’s June 6, 1996 Opinion, Petitioner would be eligible to

apply for reinstatement in the District of Columbia if: (1) he were reinstated in

Virginia, or (2) upon the expiration of five years pursuant to D.C. Bar R. XI, § 16

following his compliance with D.C. Bar R. XI, §14 (g). In re Otchere, 677 A.2d 1040,

1041 (D.C. 1996); BX 5. On August 15, 2005, after waiting more than the requisite five

years, Petitioner filed a petition for reinstatement together with the required

Reinstatement Questionnaire.1 Bar Counsel filed its Answer to the petition for

reinstatement on December 2, 2005.

II. PROCEDURAL HISTORY

After two prehearing conferences, an evidentiary hearing was held on March 1,

2006 before an Ad Hoc Hearing Committee comprised of Carmen A. Cintron, Esq.,

1 Petitioner’s first petition for reinstatement, filed on February 28, 2005, was voluntarily

withdrawn on May 27, 2005. Bar Docket No. 81-05.

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Chair; Mr. Gene Sofer; and Linda Stein, Esq. (“Hearing Committee”). At the hearing,

Bar Counsel introduced exhibits A-D and 1-15 without objection and these exhibits

were admitted. Hearing Transcript (“Tr.”) at 377-78. Additionally, the Joint Stipulation

of Issues is admitted into evidence as BX 16 as requested at footnote 3 of Bar Counsel’s

brief. Since Petitioner admits to his misconduct in the Joint Stipulation the evidence

concerning the unadjudicated act is admissible. See DC Board Rule 9.9 (c). Petitioner

introduced exhibits (“PX”) A – N and supplemented PX E and PX G which were all

admitted into evidence. Tr. At 377-78. The Hearing Committee allowed the record to

remain open pursuant to Bar Counsel’s request so that Petitioner could supplement the

record with an additional exhibit identified as PX O. That exhibit was filed on March

3, 2006.2

At the March 1, 2006 evidentiary hearing, eight witnesses testified on

Petitioner’s behalf: Dr. Richard Ratner, David Fendig, Melonie Webb, Patricia Riley,

Esq., Travis Murrell, Esq., James Enos-Edu, George Williams, and Lola Nell Summers.

Petitioner also testified. Bar Counsel did not call any witnesses.

On April 17, 2006, Petitioner filed his Post-Hearing brief. On May 12, 2006,

Bar Counsel filed its Brief.

2 This exhibit is admitted into evidence and the record is now deemed closed.

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III. FINDINGS OF FACT

A. Nature and Circumstances of the Misconduct

Unadjudicated Acts

1. In the District of Columbia, Petitioner had two docketed complaints that

were dismissed without prejudice (otherwise known as “unadjudicated acts”) (Bar

Docket Nos. 115-95 and 92-97), upon the suspension of his license in this jurisdiction.

Once Petitioner filed the petition for reinstatement, Bar Counsel re-opened Bar Docket

No 115-95. Bar Counsel sought to admit it as an unadjudicated act under Board Rule

9.9. BX D at 4. On February 21, 2006, Petitioner admitted to his misconduct in this

case in the Joint Stipulations of Fact.3 The Hearing Committee’s findings of fact in

connection with this matter are as follows:

2. Petitioner represented Jesse L. Holt, Jr., in a personal injury matter

beginning in April 1993. BX 13 at 122-24. The case settled in November of 1993, in

the amount of $9500, with medical and other expenses totaling over $5200. BX 13 at

125, 127. Petitioner gave Mr. Holt a check for $3206.25 on November 8, 1993, and

informed him that he would pay his medical bills from the remaining settlement funds,

but in fact he never did so. BX 13 at 126; BX 13 at 128-132 (copies of unpaid medical

bills sent to Mr. Holt). Petitioner failed to hold the settlement funds in trust as he was

required to do under District of Columbia Rules of Professional Conduct 1.15 (b).

Instead, he used the funds for his personal and unauthorized use. Tr. at 341-42; see BX

16 Joint Stipulation of Facts, ¶¶ 6, 8.

3 Board. As stated above the Joint Stipulation has been admitted into evidence.

- 5 -

3. In May of 1995, the Virginia State Bar’s Client’s Protection Fund Board

(the “Virginia Board”) reimbursed Mr. Holt in the amount of $5173.75. BX 8 at 25.

According to Clients’ Protection Fund Rules I (4)(b) and I (5), the Virginia Board only

makes such reimbursements for losses due to dishonest conduct by a lawyer, with

“dishonest conduct” defined as “any wrongful act committed by a lawyer in the nature

of theft or embezzlement of money or the wrongful taking or conversion of money,

property or other things of value . . . .” BX 11 at 46-47; see also BX 6 (Notice of

Decision by District of Columbia Bar Clients’ Security Fund dismissing Mr. Holt’s

application due to reimbursement by the Virginia Board).4

Virginia Disciplinary Cases

4. Virginia revoked Petitioner’s license based on six complaints pending

against him, all of which appeared to have occurred in the early nineties. Petitioner

voluntarily surrendered his license in November 1994, and his petition to surrender his

license was “deemed an admission of all charges of misconduct pending against him

before this Board, or a District Committee, or a Court.” BX 2, 5.

5. The complaint by Ify Ogbonnah, No. 93-041-1068, involved allegations

of neglect, failure to return the client’s file and unearned fees. Petitioner was retained

to represent Mr. Ogbonnah in June 1990 to file a labor certification with the

Immigration authorities. The client alleged that during the course of the representation,

Petitioner failed to timely appear for two hearings and seemed to be intoxicated.

4 The Holt case resulted in a criminal conviction in Virginia courts. See below.

- 6 -

6. Crystal Okoye’s complaint, No. 93-041-1844, centered on Petitioner’s

offering of his house as collateral to secure a bail bond for a criminal case against Ms.

Okoye’s husband when Petitioner knew that his house was in foreclosure. On or about

November 13, 1992, Complainant paid $10,000 to Petitioner. On January 8, 1993, the

bond for Mr. Okoye was denied and the next day, Ms. Okoye requested Petitioner to

refund her $10,000, which Petitioner failed to do. See BX 1 at 1-2. The Fourth District

Committee of the Virginia State Bar found in this case that Petitioner violated

Disciplinary Rules 1-102, 5-103, 5-104, and 9-102, in that he committed a crime that

reflected adversely on his fitness to practice 1aw, engaged in conduct involving

dishonesty, fraud, deceit or misrepresentation, entered into a business transaction that

was a conflict of interest with his client, and failed to promptly pay a client the funds

she was entitled to receive.5 BX 1.

7. In both the Michael Sakyi and Isatu Bangura matters, Nos. 94-041-0413

and 94-041-0813, Petitioner failed to disburse settlement proceeds to his clients and

their medical providers. The checks that Petitioner sent were returned for insufficient

funds. BX 3.

8. Petitioner also wrote a check returned for insufficient funds during the

course of his representation of Negib Abadir. No. 94-041-1885. The check was issued

by Petitioner as a refund to the client after failing to appear on the client’s behalf at a

court hearing. Therefore, Petitioner never refunded to the client his unearned fee. BX

3.

5 This case resulted in a criminal conviction. See below.

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9. Dr. Michael Redlich filed a complaint against Petitioner for failing to

pay him his share of settlement proceeds for providing medical care in several personal

injury matters, including the Bangura case. No. 94-041-2213. BX 3; Petitioner’s

Exhibit (PX) E 2.

Criminal Convictions

10. Because of Petitioner’s misconduct in the Holt matter, he was charged

with felony embezzlement in Arlington County, Virginia in the criminal case

Commonwealth of Virginia v. Felix Otchere, CR 95-892. On October 11, 1995,

Petitioner entered a plea of guilty to embezzlement in Arlington County Circuit Court.

In September 1995, Petitioner was sentenced to twenty years imprisonment with fifteen

years suspended, probation for ten years and ordered to make restitution in the amount

of $5,173.75. BX B (Plea Agreement Memorandum for CR 95-892).

11. In the Okoye case, on February 15, 1995, Petitioner pled guilty in

Arlington County Circuit Court to the felony of false pretenses in the criminal case

Commonwealth of Virginia v. Felix Otchere, CR 94-2317, and was sentenced to ten

years imprisonment, with 12 months suspended, three years probation beginning after

release, and was ordered to pay restitution in the amount of $10,000.00. BX B (Plea

Agreement Memorandum for CR 94-2317).

12. On December 20, 1994, Petitioner was found guilty of the felony of

Driv[ing] after being adjudged an Habitual Offender in the Circuit Court of Prince

- 8 -

William County, Virginia, CR 35760, and was sentenced to two years imprisonment on

February 16, 1995. BX B, Attachment to Question 24.

13. Petitioner was released from jail in January 1997.

Petitioner’s Testimony at Reinstatement Proceeding

14. Petitioner credibly testified as to his conduct. In 1994, Petitioner was

found guilty of being a habitual offender of Virginia’s Drunk Driving Statute and was

sentenced to two years consecutive imprisonment. Tr. at 338. On February 15, 1995,

Petitioner pled guilty to the felony of false pretenses relating to the Okoye matter (in

Arlington County Circuit Court and was sentenced to 10 years imprisonment with all

but one year suspended and three years probation. Tr. at 337. Petitioner also pled

guilty to embezzlement in September 1995 in Arlington County Circuit Court relating

to his actions in the Holt matter and was sentenced to 10 years probation. Tr. at 342-

343. This was Petitioner’s third felony conviction. Tr. at 343. In total, Petitioner was

incarcerated from December 1994 to January 1997. Tr. at 343. Throughout the

proceeding petitioner has been forthcoming. At the hearing he appeared genuine in his

contrition, his demeanor was appropriate and he appeared truthful. As a result, his

testimony is credited and he is found to be a credible witness.

B. Recognition of the Seriousness of Misconduct

15. On direct examination, Petitioner stated:

There is no justification for any of the things I did. The only thing I can say is I let alcohol take over my life, and I am responsible for that because again, as I said, all the signs were there that I was an alcoholic, but for a long time I was in denial. And I hurt a lot of people, my

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clients who trusted in me, friends, my family, especially my children.

Tr. at 305.

16. Regarding his actions in specific cases, Petitioner credibly testified that

his actions in the Okoye matter were “the most stupid thing,” “more than deceitful,” and

“inconsiderate.” Tr. at 335, 337. As to the Sakyi matter, Petitioner credibly testified

that his conduct was “the most shameful in view of my close relationship with the

Sakyis.” Tr. at 347. And for the Bangura case, Petitioner credibly testified at hearing

that “I settled the case and when I wrote her the check at that time I took some money

out of the escrow account so the check didn’t go through.” Tr. at 347. Other witnesses

also testified that Petitioner has expressed sincere remorse for his misconduct. Tr. at

219-220 (testimony of Mr. Murrell); 269 (testimony of Mr. Williams); PX E8 (Aman

Kirah Decl.).

17. Throughout Petitioner’s testimony, he expressed remorse for the actions

that lead to his disbarment. Petitioner accepted responsibility for his decisions and

actions. E.g., Tr. at 302-303, 305. We credit Petitioner’s testimony, both his words

and his demeanor at the hearing, as evidence of remorse.

- 10 -

C. Post-Discipline Conduct – Remedy Past Wrongs and Prevent Future

Ones

Remedy Past Wrongs

18. During the disciplinary proceedings that led to his licenses being

revoked, Petitioner owed restitution to at least five different clients. Petitioner has

made substantial efforts to make restitution to those clients.

19. In the Okoye matter, Petitioner was ordered by the Arlington County

Circuit Court to pay Ms. Okoye $10,000. Petitioner has been making payments

pursuant to this order since the time of sentencing in 1995, and has made significant

progress towards completing his obligations in the past year. Petitioner testified that he

is paying $500 a month and now owes $3000.6 Tr. at 314, 315. PX E3.

20. Petitioner has fully paid the Virginia State Bar Clients’ Protection Fund

(“Fund”) for the Holt matter in the sum of $5173.75. PX E1; BX 8 at 19.

21. Petitioner is in the process of paying the Fund $4500 for the Sakyi

matter. BX 8 at 19. At the time of the hearing, Petitioner had paid $2300 and owed

$2200.7 Tr. at 315. He is currently paying $200 a month. PX E4; Tr. at 354. Petitioner

credibly testified corroborated by Mr. Williams that he has formally apologized to Mr.

Sakyi. Tr. at 304.

6 In his brief at page 20 n. 8 Petitioner states he has paid an additional $500 leaving a balance of

$2500.

7 In his brief at page 20 n. 3 Petitioner stated he has paid an additional $200 leaving a balance of $3000. We credit the fact that he has made an additional payment however, the balance due stated in the brief appears to be an error since PX E reflects a balance due of $2200.

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22. Petitioner testified that he has reimbursed Dr. Michael Redlich in the

amount of $530 and Ms. Isatu Bangura for an undisclosed amount. PX E2; Tr. at 304,

313, 347-48.

23. Petitioner further testified that he repaid Mr. Abadir $500 in full refund

of the unearned retainer. Tr. at 350.

Prevention of Future Wrongs

Alcoholism in Relation to Misconduct

24. Petitioner committed most, if not all, of his unethical acts during the

early nineties, particularly around 1992-93. The record evidence shows that Petitioner

was an alcoholic during the time that he committed the misconduct. Dr. Richard Ratner

is a clinical professor of psychiatry at George Washington University School of Medicine,

adjunct professor at Georgetown University Law School, and a consultant at Saint

Elizabeth’s Hospital. Tr. at 65. Petitioner was referred by Bar Counsel to Dr. Ratner for

an evaluation. Dr. Ratner had two sessions with Petitioner during which he conducted a

psychiatric evaluation of Petitioner. He also administered a psychological questionnaire,

the MCMI-III. Tr. at 64-69. Dr. Ratner also reviewed records in connection with the case

that Bar Counsel submitted to him regarding Petitioner’s offenses leading to his

disbarment and Petitioner’s activities over the last several years, including his treatment

for substance abuse. Tr. at 66-69.

25. Based upon his interviews, tests and review of records, Dr. Ratner

prepared a report of his diagnosis, prognosis for the future and recommendations.

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Petitioner Exhibit (“PX”) A; Tr. at 70. Dr. Ratner testified that Petitioner’s alcoholism at

the time of his offenses was a contributing factor to the criminal activities and conduct in

the early 1990s that lead to the loss of his license to practice law. Tr. at 74-76. Dr.

Ratner characterized Petitioner’s present state of sobriety as complete and on-going. Tr.

at 76. His very positive prognosis was based upon not only Petitioner’s attitude and

understanding of his situation but also upon Petitioner’s determination to continue the

support systems that have served him well over the last 7 or 8 years, including his

membership and participation in the Alcoholics Anonymous (“AA”) program and the fact

that Petitioner has worked without missing time from work or being fired. Tr. at 76-78.

Additionally, Dr. Ratner opined that Petitioner has rehabilitated since he has been sober

for many years without any relapses. Tr. At 95, 120-121.

26. In Dr. Ratner’s professional opinion, Petitioner is ready and prepared to

resume the practice of law and we accept that testimony. Tr. at 87-88. Dr. Ratner

testified that he did not find any adverse effect of Petitioner’s long-term alcohol abuse

on his mental alertness, he can grasp complex issues and does not need psychiatric or

psychological treatment. Tr. At 82-86. This witness also noted stressors that Petitioner

has confronted in a positive way as further evidence of his capabilities. These were the

diagnoses of throat cancer in 2004 and dealing with the loss of a relative and the

obligation of arranging for the return of the body to Ghana. Tr. at 100-01;116; 86-7.

Additionally, Dr. Ratner opined Petitioner is honest and forthcoming. Tr. at 73.

27. Dr. Ratner expressed the opinion that Petitioner has shown that he is

ready to be entrusted with the responsibility of the practice law and that Petitioner has

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the emotional strength and capacity to deal with the stress that comes with the solo

practice of law. Tr. at 115-116. Further, so long as Petitioner stays sober, Dr. Ratner

did not see handling clients’ funds as a problem for him. Tr. at 101-102. This

testimony is given significant weight. This witness credibly testified as an expert and

his testimony is not contradicted by any other evidence in this record. Dr. Ratner based

his testimony not only on interviews, his review of records and the tests he conducted

but on his professional experience over the years with other alcoholic individuals.

28. Ms. Melonie Webb is a counselor with the Lawyer Counseling Program

for the D.C. Bar. That program provides short-term counseling to lawyers for a variety of

issues, including substance abuse. Tr. at 157-159. Ms. Webb started seeing Petitioner in

October 2005 for an alcohol evaluation and they have had six sessions. Tr. at 159-160.

Petitioner contacted her because he sought reinstatement to the D.C. Bar, and scheduled

an appointment so that Ms. Webb could evaluate him and where he was in the process of

his recovery. Tr. at 160-161. Ms. Webb is aware of Petitioner’s problems with the law,

including DWI charges and misappropriation of client funds, and she believes that

alcoholism played a part in that misconduct. Tr. at 167-168. Based upon her meetings

with Petitioner and review of records, Ms. Webb testified that in her professional opinion

Petitioner is in full, sustained remission from alcohol dependency. Tr. at 162. Based

upon Petitioner’s 11 years of sobriety and his participation in things that support his

sobriety, such as AA meetings and contact with his sponsor, Ms. Webb has no concern

about Petitioner’s maintenance of sobriety. Tr. at 165. Ms. Webb further testified that if

reinstated, she believes Petitioner will be able to meet all responsibilities. Tr. at 166.

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This credible testimony is given significant weight. Ms. Webb testified based on her

expertise as counselor. Ms. Webb has a B.A. in psychology (1993) and a Master in social

work (1998). She is a licensed social worker with expertise in substance abuse having

worked in this field for the past seven years. Tr. at 158, 172.

29. Ms. Patricia Riley is a member of the D.C. Bar who has worked with the

U.S. Attorney for the District of Columbia for over 21 years and is a founding member of

the Lawyers Counseling Program and the lawyers group of Alcoholics Anonymous. Tr.

at 185-186, 191. Ms. Riley met Petitioner 5 or 6 years ago at a lawyers group meeting of

Alcoholics Anonymous and knows that Petitioner attends those meetings regularly. Tr. at

186-187. She further testified that Petitioner participates fully in the AA meetings and

shares his feelings with the group. Id. Ms. Riley is aware from Petitioner of Petitioner’s

criminal past, including his problems with the D.C. Bar and a series of DWI’s. Tr. at

188-189. Ms. Riley believes that Petitioner is honest about his sobriety and that he has

exhibited a high degree of integrity. Tr. at 190-191. Ms. Riley believes that Petitioner is

a fit person to be readmitted to the D.C. Bar and that his resumption of the practice of law

will not be detrimental to the law, the integrity of the Bar, or the administration of justice.

Tr. at 191. Ms. Riley testified credibly, her expertise in this area is significant and her

candid testimony impressed this panel. Most significantly her willingness to appear and

testify on Petitioner’s behalf persuades this panel that she truly believes in what she said.

30. Mr. Travis Murrell is a member of the District of Columbia Bar and a

practicing attorney. Tr. at 204-205. Mr. Murrell is involved in the Lawyers Counseling

Program and in the lawyers’ Alcoholics Anonymous group. Tr. at 205. Mr. Murrell has

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been going to the lawyers AA meetings on Monday nights since roughly 1984. Tr. at

205-206. Mr. Murrell met Petitioner around 1997 at the Lawyers Monday night AA

meeting and sees Petitioner regularly at those meetings. Tr. at 206. Mr. Murrell is

Petitioner’s sponsor in the AA program and is aware of Petitioner’s alcoholism, past

criminal conduct and present sobriety from statements made by Petitioner. Tr. at 206-

208, 212-214. Mr. Murrell believes there is a correlation between Petitioner’s past

criminal conduct and the alcoholism. Tr. at 210. Mr. Murrell describes Petitioner’s

present state of sobriety as a very strong state of sobriety based upon the number of years

that Petitioner has not had a drink and his attendance at AA meetings and the fact that

Petitioner uses the principles of AA in his daily life. Tr. at 210-211. Mr. Murrell thinks

that Petitioner will continue to lead a sober life. Tr. at 212-213. This witness was a very

credible witness. He candidly testified how he met the witness and how he has mentored

him for many years.

31. Mr. James Enos-Edu has known Petitioner for 25 to 30 years and

considers Petitioner a very close friend. Tr. at 243. Mr. Enos-Edu is aware of

Petitioner’s legal problems involving alcohol and misappropriation of funds. Tr. at 244.

The witness believes Petitioner is remorseful for his past wrongs. Tr. at 246-247. Mr.

Enos-Edu sees Petitioner several times a month and does not believe Petitioner has a

problem with alcohol now. Tr. at 248. He has been to a number of functions with

Petitioner where alcohol was served and Petitioner did not drink. Tr. at 254-256. This

witness was credible, he appeared sincere and knowledgeable since he has contact with

Petitioner several times a month.

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32. Mr. George Williams has known Petitioner for over 30 years ever since

Petitioner was a law student and they both drove cabs. Tr. at 260-261. He considers

Petitioner a very good friend. Tr. at 261. Mr. Williams knows all about Petitioner’s

problems with the law involving alcohol including DWI’s and Petitioner’s misconduct

such as misappropriation of client funds. Tr. at 262-263. The witness believes that

drinking was a factor in the criminal acts that Petitioner committed. Tr. at 271-272. Mr.

Williams knows that Petitioner does not drink anymore and believes he would know if

Petitioner did drink. Tr. at 264-265. He believes that Petitioner will be able to maintain

his sobriety and that Petitioner is a fit and proper person to be reinstated to practice law.

Tr. at 271. Mr. Williams is a retired building supervisor for Fairfax County Public

Schools who is now employed with Quest Diagnostics. This witness’ testimony is

credited. He was credible and he has known Petitioner for over thirty years.

33. Ms. Lola Nell Summers has been Petitioner’s landlady for about three

years. Tr. at 281-283, 285. She met Petitioner through Mr. James Enos-Edu, a mutual

friend. Tr. at 282. Ms. Summers is aware of Petitioner’s drinking problems, misuse of

client funds and incarceration because Petitioner told her about those problems. Tr. at

283. The witness has not seen any sign that Petitioner has a drinking problem. Tr. at 286.

She has been to functions with him where people ordered drinks and he did not, and she

knows he goes to AA meetings on Monday. Tr. at 286-287. Ms. Summers considers

Petitioner to be an honest person and a person of moral integrity. Tr. at 287. This

witness’ testimony is credited. She was credible and significantly, she patiently waited all

day to testify on Petitioner’s behalf, although it was obvious to the Committee that she

- 17 -

has physical limitations. Her demeanor and candid testimony showed she truly believes

in what she testified.

34. Petitioner, Felix B. Otchere, testified that he was admitted to the Virginia

Bar in 1980 and to the D.C. Bar in 1981. Tr. at 324. Petitioner started his own practice in

1982 and was in a general solo practice that involved a lot of immigration work. Tr. at

324. In the early 1980s, Petitioner drank pretty much on the weekends, primarily beer.

Tr. at 326. As his drinking progressed, Petitioner started drinking hard liquor and his

drinking habits accelerated around 1987 when he got quite a few DWI’s. Id. He also

divorced his first wife in 1987. Tr. at 327. As a result of the DWI convictions, Petitioner

entered a 28-day detox program in Arlington County around 1988 and stayed sober for

less than a year. Tr. at 328. Petitioner remarried in 1990 and that second marriage lasted

until 1993. Tr. at 330. During that second marriage, Petitioner’s drinking habits

accelerated and he was drinking mostly hard liquor. Tr. at 330-331. By 1991, he was

drinking every evening and by 1992-1993 he was drinking in the morning. Tr. at 331.

35. With respect to his legal practice, Petitioner credibly testified that around

1992, the cash flow started slowing down because word got around that he was drinking

too much. Tr. at 332-333. By 1993, Petitioner basically had no clients and his legal

practice collapsed. Tr. at 334. When Petitioner was in jail, he requested to be moved to

the treatment unit of the Arlington County Jail because he believed there was no question

that he was an alcoholic. Tr. at 305. At that point, he was ready to turn his life around

and follow the rules. Tr. at 306. When he came out of jail, he went to aftercare and

started going to AA meetings seriously. Tr. at 306-307. Petitioner credibly testified that

- 18 -

he takes his sobriety very seriously. He goes to AA meetings regularly, and talks to his

sponsor regularly even when there is nothing to talk about. Tr. at 310-311.

Additionally, Petitioner testified he has volunteered to be the secretary of the Friday noon

meeting of the lawyers group. Tr. at 307-08. He attributes sobriety to saving his life.

Tr. at 316-17. We previously found above that Petitioner is a credible witness.

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36. Another witness testified as to Petitioner’s sobriety. Mr. David Fendig

met Petitioner about 7 or 8 years ago when Petitioner was hired as a records clerk at the

law firm of Swidler Berlin. Tr. at 125. At that time, Mr. Fendig was the supervisor in

the Records Department of the law firm. Id. Mr. Fendig and Petitioner have become

close friends. Tr. at 126. Petitioner told Mr. Fendig that Petitioner used to be a

practicing lawyer and that Petitioner got in trouble with the law involving alcohol and

misappropriation of funds. Tr. at 127-28. Mr. Fendig knows Petitioner is a recovering

alcoholic and that Petitioner takes his sobriety very seriously. Tr. at 131, 133-134. He

has seen Petitioner in situations where alcohol was present but Petitioner has never had

a drink. Tr. at 131-134. This witness was credible, he not only worked with him but

has gotten to know him socially, going out together to lunch and to football games. Tr.

at 148-149. He testified that he was at Petitioner’s first grandson’s naming ceremony.

He also testified that he has watched Petitioner undergo tremendous physical pain based

on his medical condition. Tr. at 131-32; 136-38.

Petitioner’s Financial Practices

37. Petitioner testified that he started working at Swidler Berlin as a temp at

$8.00 per hour for six months until he received permanent status, making $12.00 per

hour. Later on he became a legal assistant with a monthly income above $3,000. Tr. at

312-13; 353. He provides for his family financially. Tr. at 356.

38. Petitioner failed to timely file federal income tax for two years in 1998

and 1999. Petitioner testified on direct examination that he “cannot remember, I guess

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the only things I can say is at the time the fog was not fully clear from my mind . . . .”

Tr. at 321. In an effort to redress this situation, he is currently paying the Internal

Revenue Service $200 a month, with approximately $2000 remaining. Tr. at 321-22;

PX G; BX 9.

39. In addition, Petitioner has had a total of forty-two checks returned for

insufficient funds from June 20, 2000 to October 2004. BX 12; BX 14 at 136. When

asked about this, Petitioner responded, “I wasn’t very responsible in maintaining my

account…my practice was to send out checks a few days before payday, hoping that,

you know, they would coincide. It didn’t always work, and then many times I ended

paying overdraft fees and insufficient fund fees.” Tr. at 371-72. While Petitioner took

some responsibility for his financial irregularities, he also attributed his deficiencies to

others, i.e., poor communication with payroll and a landlord who failed to cash his rent

check quickly. Tr. at 372-73.

40. Petitioner admitted that he did not balance his checkbook or keep

account of his financing in any way other than checking his balance at the ATM

machine when he would take out some cash. Tr. at 373-74.

41. Recently Petitioner has improved his financial practices and is willing to

accept instruction and guidance should he choose to go back into private practice.8 At

the hearing, Petitioner credibly testified that he now keeps track of the balance in his

bank account with online banking. Tr. at 375. There is no evidence in the record that

8 Petitioner testified that, “it is not my immediate plan to get into [private] practice.” Tr. at 361-

62.

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he has had a check returned for insufficient funds since October 2004, although the

record evidence is not current.9 BX 14. When asked at the hearing about the possibility

of working with a financial monitor, Petitioner replied, “I don’t have a problem with

that . . . . [O]ne of the things I have learned is not to be afraid to ask for help . . . . I

have talked to [Reid Trautz] just to get an idea of what kind of services they provide.”

Tr. at 362. Petitioner testified that he would be amenable to accounting classes as well.

Id. Additionally, Petitioner credibly testified that he worked out payment arrangements

with credit card creditors and has straightened up these accounts. Tr. at 368-70. He

also credibly testified that at his current position he has a small expense account and he

handles the bills involved with outside vendors who do copying. Tr. at 357-58.

D. Present Character

42. Petitioner and his character witnesses testified credibly as to Petitioner’s

remorse for his past conduct. Mr. Fendig believes that Petitioner is a person with

particular moral integrity and has the honesty to be a practicing lawyer. Tr. at 13. Mr.

Fendig also testified that Petitioner had a “fantastic” work ethic. Tr. at 128 (Fendig).

Mr. Fendig described Petitioner as a person with moral integrity. Tr. at 139. He has

also observed that his family and other people treat Petitioner with a great deal of

respect and admiration. Tr. at 133. This witness also credibly testified that he admired

Petitioner’s emotional strength. Tr. 136-38.

9 Bar Counsel examined Petitioner’s bank records from June 20, 2000 to January 2005. BX 12,

14.

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43. Enus Edu testified about Petitioner’s present remorse for his past

misconduct and that Petitioner currently is held in high regard by the Ghanian

community. Tr. at 245-47 (Enos Edu).

44. Dr. Ratner testified that based upon his interviews with Petitioner, he

finds Petitioner to be honest and forthcoming. Tr. at 73. This witness also stated in his

professional opinion that Petitioner can be entrusted with the responsibility of practicing

law. Tr. At 87-88.

45. Ms. Webb described the Petitioner as honest and open. Tr. at 166.

46. Ms. Riley also described Petitioner as someone who is honest and

exhibits a very high degree of integrity. Tr. at 190-91.

47. Ms. Summers also considers Petitioner to be an honest person and a

person of moral integrity. Tr. at 287. This witness has given Petitioner access to her

entire house and entrusts him with her money. Tr. at 258-293.

48. Mr. Murrell believes that Petitioner has the emotional and moral strength

to handle adversity and that he is capable of handling the stress of practicing law. Tr. at

217-218. This witness believes that Petitioner recognizes the seriousness of the crimes

that he committed, has remorse for what he has done, and would be a fit and proper

person to be readmitted to the Bar. Mr. Murrell also testified that Petitioner has shown

amazing courage in dealing with his medical condition. Tr. at 216-220, 240.

49. Mr. Williams believes that Petitioner recognizes the seriousness of the

offenses that he committed based upon his conversations with Petitioner and the fact

that Petitioner went to see the Sakyi family, a family from whom Petitioner

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misappropriated funds, to say how sorry he was for doing that. Tr. at 267-269. Mr.

Williams said that the Ghanian community still regards Petitioner as a very valuable

person because of what Petitioner has done for the community and people in the

community have been rooting for Petitioner to get his license back and do a good job

for the community. Tr. at 270.

50. We previously found that these witnesses were credible, therefore we

credit all this character testimony. Moreover, Petitioner’s commitment to his children

and grandchildren also reflect positively on his character. Tr. at 356, 365.

E. Present Qualifications

51. Petitioner stopped practicing law in 1994. In support of his present

qualifications to practice law, Petitioner offers his employment with the firm Swidler

and Berlin (now called Bingham McCutchen) since May 1997 and submits as exhibits

evaluations of his performance, a lawsuit that he brought against a credit card company,

as well as a brief that he worked on as a legal assistant around 2005. PX I, J, K, M.

Petitioner began working at Swidler Berlin in 1997 and was promoted to be a legal

assistant at Swidler Berlin in 2000. Tr. at 313, 353, 357. Petitioner still works at the

law firm as a legal assistant. Tr. at 357. He does research, reviews depositions and

other documents and prepares briefs for attorneys to review. PXM; Tr. At 319-320;

359-60. Petitioner, submitted a brief and testified credibly that he had significant

responsibilities and others did little editing of this brief. Tr. at 359-60. Mr. Fending

credibly testified Petitioner’s work as “pretty fantastic” and that he has heard positive

comments about his work. Tr. At 128.

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52. Petitioner also submitted evidence concerning continuing legal education

(“CLE”) programs that he has attended. PX L; Tr. at 320. Petitioner also testified

credibly that he always has had an interest in law. Tr. at 318.

IV. ANALYSIS OF THE LAW

An attorney seeking reinstatement to the practice of law has the burden of

proving “by clear and convincing evidence” that he has the “moral qualifications”,

competency, and learning in the law required for readmission,” and that the resumption

of the practice of law by the attorney will not be detrimental to the integrity and

standing of the Bar, or the administration of justice, or subversive to the public

interest.” D. C. Bar R. XI, § 16 (d). The Court of Appeals has ruled that, in determining

whether a petitioner meets these requirements, the factors to be considered are: (1) the

nature and circumstances of the misconduct for which the attorney was disciplined; (2)

whether the attorney recognizes the seriousness of the misconduct; (3) the attorney’s

conduct since discipline was imposed, including the steps taken to remedy the past

wrongs and prevent future ones; (4) the attorney’s present character; and (5) the

attorney’s present qualifications and competence to practice law. In re Roundtree, 503

A. 2d 1215, 1217 (D. C. 1985). Bar Counsel averred that the public interest would not

be undermined by Petitioner’s reinstatement, provided certain conditions are imposed.

A. Nature and Circumstances of the Misconduct

The misconduct resulting in Petitioner’s disbarment was serious. He engaged in

misconduct involving criminal convictions, neglect, dishonesty, failure to return

unearned fees, and the misappropriation of client funds. Since Petitioner’s underlying

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misconduct was serious and involved criminal convictions, Petitioner’s evidence must

be evaluated under a heightened scrutiny. See In re Borders, 665 A.2d 1381 (D.C.

1995) (citation omitted); In re Fogel, 679 A.2d 1052 (D.C. 1996). Petitioner’s failure to

safeguard client funds and his subsequent unauthorized use of those funds for personal

purposes constitutes one of the most serious types of misconduct an attorney can

commit. See In re Addams, 579 A.2d 190, 193 (D.C. 1990)(en banc). Similarly,

dishonesty is viewed as a fundamental defect in an attorney’s fitness to practice. In re

Shorter, 570 A.2d 760 (D.C. 1990).

Petitioner’s ethical misconduct occurred in two different jurisdictions, harmed

multiple clients, and included Petitioner’s conviction for three serious criminal offenses.

Although Petitioner engaged in serious criminal offenses which resulted in

criminal convictions, such convictions do not in themselves preclude him from being

reinstated. Individuals, like Petitioner, who have been convicted of non-violent

criminal offenses have been later reinstated to the Bar of the District of Columbia where

they have otherwise met the Roundtree factors. See, e.g., In re Casalino, 741 A.2d 38

(D.C. 1999 ) (attorney disbarred after having pled guilty to tax fraud was later

reinstated); Anderson, 741 A. 2d 37 (D.C. 1999) (reinstatement granted to attorney who

pled guilty to three counts of false pretenses). As discussed further below, when the

nature and circumstances of Petitioner’s misconduct is weighed along with Petitioner’s

acceptance of responsibility for his actions, his current state of sobriety, his willingness

to make restitution and to meet his responsibilities since his release from prison, and his

current character and qualifications, reinstatement is appropriate.

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B. Recognition of the Seriousness of Misconduct

Bar Counsel avers that Petitioner has met his burden of proof in showing that he

recognizes the seriousness of his misconduct. This Committee agrees. Petitioner

acknowledged the wrongfulness of his behavior in all instances of conduct stated in this

record. His testimony also shows he is remorseful for his past misconduct. Prior to the

hearing, Petitioner acknowledged that he misappropriated the Holt settlement funds in

the Joint Stipulations of Facts and did not offer any excuses or justification for his

behavior. At the hearing on his petition for reinstatement, Petitioner acknowledged the

wrongfulness of his behavior in all of the cases discussed supra, accepted full

responsibility for his actions, and did not attempt to blame others or otherwise justify

his misconduct. Tr. at 300, 301, 305, 316.

C. Post-Discipline Conduct- Remedy Past Wrongs and Prevent Future

Ones

Petitioner has taken several steps to remedy past wrongs. He has made efforts to

provide restitution to those harmed by his misconduct. Evidence of petitioner’s efforts

to make restitution to those harmed by his misconduct is a prerequisite to establishing

that he is fit to be reinstated to the Bar. In re Morrell, 859 A.2d 644 (D.C. 2004).

Restitution need not be completed before an individual is reinstated. In re Roxborough,

775 A.2d 1063, 1078 (D.C. 2006). Bar Counsel avers that Petitioner has presented

sufficient evidence of his efforts to remedy past wrongs. This Hearing Committee

agrees.

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Given that the Petitioner’s restitution obligations totaled over $20,000 and that

he has paid approximately $15,000 towards these obligations (or 75%), the Hearing

Committee believes that Petitioner has met his burden of showing that he has made

serious efforts to correct his past wrongs. Nevertheless, the Committee recommends

that Petitioner’s reinstatement be conditioned upon his provision of evidence to the Bar

each year showing that he is making timely payments to complete his restitution to the

clients still owed money.

The imposition of conditions upon a reinstated attorney is authorized by D.C.

Bar Rule XI, §16 (f). See In re Brown, 649 A.2d 835 (D.C. 1994) (reinstatement

conditioned upon certified completion of two CLE courses and a practice monitor); In

re McConnell, 667 A.2d 94 (D.C. 1995) (reinstatement conditioned upon monitoring for

continuing abstinence from substance abuse and completion of a course on legal ethics);

In re Shorter, 603 A.2d 462 (D.C. 1992) (reinstatement conditioned upon counseling

and monitoring of payment of federal and local income taxes); In re Roxborough, supra

(reinstatement conditioned upon implementation of a restitution plan).

D. Prevention of Future Wrongs

1. Alcoholism

Petitioner has the burden to show that his alcoholism is in remission and that he

will not harm future clients, either financially or in terms of how he handles their cases.

Bar Counsel does not contest that Petitioner has shown substantial rehabilitation from

the disease of alcoholism.

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The record evidence has demonstrated that Petitioner’s past conduct was highly

related to his abuse of alcohol. However, the record also shows by clear and convincing

evidence that Petitioner has stopped abusing alcohol and has taken steps necessary to

maintain his sobriety. The record evidence shows that Petitioner has been sober for

over eleven years. Tr. at 165. At the hearing, Petitioner credibly testified that he had a

kind of epiphany while incarcerated in 1994:

So from then on I took sobriety seriously because I looked at all these things that I had done, things that any sane, responsible person shouldn’t do, and something I never thought in my life that I would be doing. I realized that I needed to make drastic changes in my life, and is what I did. I took sobriety seriously.

Tr. at 315.

Petitioner has provided clear and convincing evidence that he attends AA

meetings regularly, that he seeks out the advice of mentors who are recovering

alcoholics, and that he is motivated to remain sober for the rest of his life. Tr. at 307-

312. Petitioner’s AA sponsor, Travis Murrell, credibly testified that Petitioner has

embraced the principles of the AA program wholeheartedly, “[He] uses them in his

daily life. What that means is that he is honest, he shares what his problems are . . . .

He is able to face life on life’s terms.” Tr. at 210-11. Additionally, based on his

meetings with Petitioner, Dr. Ratner testified that he believes that Petitioner’s

alcoholism is in remission, stating, “I think that he has shown every evidence that he is

as rehabilitated as one could hope and expected that he would be at this point . . . . [A]t

this point it has been probably close to ten years and Mr. Otchere has done well . . . .”

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Tr. at 94-95. Lastly, several witnesses testified to Petitioner’s sobriety at social outings

where alcoholic beverages were present. Tr. at 148-49 (Fendig); Tr. at 286 (Summers).

The record evidence in this case regarding the rehabilitation of Petitioner’s

alcoholism is substantial, unlike the attorney in In re Spiridon, 816 A.2d 809 (D.C.

2003). As the Court stated in that case, “Spiridon’s ‘treatment and monitoring,’ the

Board determined was, ‘haphazard and without continuity’ and ‘entirely self-

regulating,’ in that it lacked any ‘safeguards or organized support’ . . . .” Id. at 810; cf.

In re McConnell, supra (disbarred attorney who had abused alcohol and drugs was

reinstated with specific conditions for attending AA meetings due to relapse prior to

reinstatement).

2. Financial Practices

The record shows that Petitioner’s bookkeeping practices while he was a solo

practitioner did not appear to be rigorous. Tr. at 333-4. Petitioner has not adequately

handled his finances during most of the past eight years. His record of “bounced

checks” due to insufficient funds in his account is particularly of concern given the fact

that Petitioner was disciplined for this exact sort of misconduct with regard to client and

third party funds. However, the record shows improvement since October 2004.

Petitioner’s willingness to improve his financial practices, along with the

improvement in balancing his personal bank account and the solid record of cooperation

regarding his personal finances, differentiates his reinstatement evidence from the facts

in In re Robinson, 705 A.2d 687 (D.C. 1998). There, the Court denied the reinstatement

of an attorney who had been disbarred for misappropriation and dishonesty due to the

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attorney’s “unmistakable pattern of writing checks without sufficient funds…behavior

reminiscent of actions that led to his disbarment . . . [and] run[ning] up large debts to

finance a movie while behind in paying his federal taxes and . . . not filing his District

of Columbia tax returns for four years in succession.” Id. at 689.10

While some of these facts bear resemblance to Petitioner’s conduct, Petitioner

has made great strides in maintaining sufficient funds in his bank account, as referred to

above. Indeed, Petitioner testified that “every morning I check my bank account

[online] and then I look at my checkbook and see what check has come in and I check it

off.” Tr. at 375. Further Petitioner has been completely forthcoming about his financial

irregularities and cooperative regarding the documents that manifest these irregularities.

In this sense, Petitioner’s behavior differs from that of the attorney in Robinson, where

the Court stated that they were especially concerned about the attorney’s “evasiveness”

about his financial matters in his reinstatement questionnaire and during the

reinstatement hearing. 705 A.2d at 689.

The Committee finds (and Bar Counsel does not contest) that Petitioner has met

his burden of proof on this Roundtree factor. However, in light of Petitioner’s past

financial practices, and in order to assist his reentry into the practice of law, the

10 Robinson filed a subsequent petition for reinstatement that is pending before the Court. As

part of its decision-making process, the Court issued an order on April 22, 2005, directing the parties to address in writing and at argument three issues, all of which reflected the Court’s concern whether Petitioner was fit for reinstatement in light of the recommendation of financial monitoring and other conditions. The Brief of Bar Counsel attached a copy of Bar Counsel’s Memorandum in Response to the Court’s Order of April 22, 2005, for In re Robinson, Bar Docket No. 461-03. See In re Robinson, BDN 461-03 (Bd. Rpt. Dec. 6, 2004) (recommending reinstatement with conditions of a practice monitor and financial management course where attorney with history of serious post-discipline financial irregularities had improved his situation and had not overdrawn either of his checking accounts in thirteen months prior to hearing.

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Committee recommends that a court-ordered financial monitor be assigned to Petitioner

for two years and that Petitioner be required to take an accounting class as conditions

for his reinstatement.

E. Present Character

Bar Counsel is satisfied that Petitioner has established the present character to be

a member of the District of Columbia Bar. It is determined that Petitioner has met his

burden of proof under this criterion. Record evidence shows a number of witnesses

consider Petitioner as honest and truthful, possessing moral integrity. His landlady

trusts him with money. He is highly regarded in his community. Additionally, there

was no evidence presented to suggest that Petitioner’s present character is such that

there should be concern that he will engage in this conduct again. Accordingly, the

Committee finds that Petitioner has met his burden of showing that his present character

qualifies him to be a member of the District of Columbia Bar.

F. Present Qualifications

Where an attorney seeking reinstatement has been suspended from the practice

of law for a lengthy period of time, such petitioner is obliged to present substantial

evidence of his present competence to practice law. See In re Stanton, 589 A.2d 425,

427 (D.C. 1991), cert. denied, 502 U.S. 1098 (1992) (given four and one-half years

from suspension to hearing, Stanton was obliged to present significant evidence of

present competence to practice law). Petitioner stopped practicing law in 1994. Tr. at

39, 52. Given that he has not practiced law in twelve years, he is obliged to present

“significant evidence” of his present competence.

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Petitioner credibly testified he has always had an interest in the law. He offers

as proof the fact that he has been working in a law firm since 1997. He has continued

attending CLE programs. Such evidence has previously been held to be sufficient to

establish an attorney’s present competence to practice law. See In re Bettis, 644 A.2d

1023, 1030 (D.C. 1994) (petitioner had developed an expertise in a particular legal

field); In re Kerr, 675 A.2d 59, 62 (D.C. 1996) (petitioner attended numerous CLE

programs); In re Blondes, 732 A.2d 262 (D.C. 1999) (petitioner suspended for 20 years

established competency by auditing two credit hour CLE course on legal ethics). Bar

Counsel is satisfied that Petitioner met his burden of proof under this criteria. The

Committee agrees. Accordingly, the Committee concludes that Petitioner has met his

burden of proof on this Roundtree criteria.

CONCLUSIONS

For the reasons set forth above, the Committee believes that Petitioner has met

his burden of proving, by clear and convincing evidence, that he should be reinstated to

the Bar of the District of Columbia. The Committee concludes that Petitioner has met

his burden of showing, by clear and convincing evidence, that under D.C. Bar Rule XI,

§16(d) and the Roundtree factors, he should be reinstated to the Bar of the District of

Columbia. Petitioner has met his burden to show that he is fit to resume the practice of

law. Bar Counsel does not contest that Petitioner has met his burden of establishing

that he is fit to resume the practice of law.

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During the revocation period there is no evidence that Petitioner has committed

any acts of misbehavior and has stayed close to the law through his work in a law firm.

Petitioner has proved his sobriety and that he maintains a support network conducive to

remaining sober. Furthermore, the evidence in this case demonstrates that once

Petitioner was released from jail, his economic situation made it difficult for him to

make restitution. However, the evidence of record shows that Petitioner has made

significant progress in restitution. The evidence in this case also shows that Petitioner

has written checks not covered by sufficient funds. Nonetheless, on a consistent basis

since October 2004 Petitioner has made significant changes in this area and is willing

to accept guidance and instruction to improve his financial skills. Accordingly, it is

concluded that the resumption of the practice of law by Petitioner will not be

detrimental to the integrity and standing of the Bar, or to the administration of justice or

subversive to the public interest. D. C. Bar Rule XI, § 16(d).

In light of Petitioner’s prior conduct concerning his finances the Committee

recommends that certain conditions listed below be imposed on his reinstatement. The

conditions are designed to help Petitioner reenter the legal profession while protecting

the public. It is noted that in reaching the decision to recommend conditions the

Committee took into account Petitioner’s testimony that “it is not my immediate plan to

get into [private] practice.” Tr. at 361-62. Consequently, the Committee recommends

his reinstatement subject to the following conditions:

1. That he comport with the payment schedule agreed to by him to provide

restitution to his former clients, Ms. Okoye and Mr. Sakyi. Further, that

he provide evidence to the Bar each year showing that he is making

timely payments to compIete his restitution to the clients still owed

money.

2. That he agree to the appointment of a financial monitor to monitor

Petitioner's,finances for two years.

3. That he take an accounting class within six months of reinstatement.

AD HOC HEARING COMMITTEE

b h n e n A. Cintron, Esquire Chair

Linda S. Stein, Esquire L'

Dated OCT.18m