EvilEsq Admits Bruce Pelkey, Xsquire

Hear Ye! Year Ye!

On this date, the Evil Esquire (Invol­un­tary) Bar Asso­ci­a­tion admit­ted Bruce A. Pelkey as an asso­ciate member.

Pelkey was dis­barred by the Dis­trict of Colum­bia Court of Appeals, effec­tive 30 days, from Decem­ber 23, 2008.

Pelkey’s mis­con­duct occurred  between 1996 and 1999 while, act­ing as legal coun­sel for var­i­ous busi­ness enti­ties he formed and oper­ated, with Linda Cav­alli, with whom he was roman­ti­cally involved.  Accord­ing to the Dis­trict of Colum­bia Bar, Mr. Pelkey “engaged in crim­i­nal con­duct (theft) as well as dis­hon­esty,”  in the process vio­lat­ing mul­ti­ple rules of pro­fes­sional con­duct, dur­ing the course of mul­ti­ple court and arbi­tra­tion pro­ceed­ings includ­ing: Rules 3.1, 3.2(a), 3.3(a)(1), 4.4, 8.4(b), 8.4©, and 8.4(d) of the Dis­trict of Colum­bia Rules of Pro­fes­sional Conduct. See: Dis­trict of Colum­bia Bar Online “Pub­li­ca­tions”, March 2009. 

Cavailli “invested” approx­i­mately $32,000 in Pelkey’s inter­na­tional con­sult­ing ven­tures.  The two dated for approx­i­mately two and a half years.  Con­tem­po­ra­ne­ous with their break-up, Pelkey attempted to dis­en­fran­chise Cav­alli from the busi­nesses.  Accord­ing to court doc­u­ments, Cav­alli sued.  Pelkey in turn filed numer­ous counter suits and appeals.  Sev­eral years and in excess of one hun­dred thou­sand in legal fees later, a Cal­i­for­nia court found in favor of Cav­alli and ordered to Pelkey to pay her $300,000 in dam­ages and legal fees.

In order­ing Pelkey disbarred, Judge Inez Smith Reid of the Dis­trict of Colum­bia Court of Appeals opined “Mr. Pelkey not only was dis­hon­est but also deceit­ful.”  His “actions in attempt­ing to sup­press the truth regard­ing his busi­ness and per­sonal rela­tion­ships with Ms. Cav­alli … can only be described as deceit­ful and as a delib­er­ate effort to mis­lead. … ”  See full text of the judge’s opin­ion “BELOW”.

Pelkey attended Pep­per­dine Uni­ver­sity School of Law and was admit­ted to prac­tice in Ari­zona on May 15, 1982.  Some­time in the mid-1990s he became a pro­fes­sor at Regent Uni­ver­sity in Vir­ginia Beach and was admit­ted to the Dis­trict of Colum­bia Bar on April 3, 1995.  Accord­ing to the Dis­trict of Colum­bia Bar, Pelkey’s con­tact infor­ma­tion is as follows:

Bruce A Pelkey, Xsquire
Con­sult­ing Group Inter­na­tional
P. O. Box 812
Bak­ers­field CA 93302

Email: BAPELKEY@AOL.COM
Phone: 310–309-3700
Fax: 310–309-3700

In grant­ing Mr. Pelkey asso­ciate mem­ber sta­tus, the Evil Esquire Bored Gov­er­nors care­fully con­sid­ered his: 1)  mer­cu­r­ial nature as illus­trated by his will­ing­ness to swin­dle  per­sons with whom he’d engaged roman­ti­cally; 2) shame­less prof­fer­ing of false infor­ma­tion dur­ing the course of judi­cial pro­ceed­ings; and 3) ability to use his pro­fes­sional stand­ing and knowl­edge of the law to frus­trate his victim’s attempts, over a con­sid­er­able period of time, to recover prop­erty right­fully belong­ing to her.

Ordi­nar­ily, in sit­u­a­tions such as this, the Bored would con­fer inter­minable mem­ber sta­tus upon Mr. Pelkey.  How­ever, in mit­i­ga­tion, they con­sid­ered the Dis­trict of Colum­bia Bar’s inter­est in “rebar­ring” Pelkey upon his mak­ing full resti­tu­tion to their “Clients’ Secu­rity Fund” and “sat­is­fy­ing all out­stand­ing judg­ments against him in favor of Ms. Cav­alli, or the related busi­ness enti­ties.”  In addi­tion, they con­sid­ered the fact that Mr. Pelkey has not been dis­ci­plined by the State Bar of Ari­zona who, as of this date, list his sta­tus as “inac­tive.”  More­over, the fact that Pelkey was unsuc­cess­ful in defend­ing Cavalli’s suit and hood­wink­ing (or brib­ing) arbi­tra­tors and the vaious judges who enter­tained his argu­ments demon­strates a lack of savoir faire the Bored typ­i­cally looks for in inter­minable members.

*** BELOW ***

Notice:  This opin­ion is sub­ject to for­mal revi­sion before pub­li­ca­tion in the Atlantic and

Mary­land Reporters. Users are requested to notify the Clerk of the Court of any formal

errors so that cor­rec­tions may be made before the bound vol­umes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 06-BG-893

IN RE BRUCE A. PELKEY, RESPONDENT.

A Mem­ber of the Bar of the

Dis­trict of Colum­bia Court of Appeals

On Report and Recommendation

of the Board on Pro­fes­sional Responsibility

(BDN 67–03)

(Argued Jan­u­ary 23, 2008 Decided Decem­ber 23, 2008)

Hamil­ton P. Fox III for respondent.

Julia L. Porter, Senior Assis­tant Bar Coun­sel, with whom Wal­lace E. Shipp, Jr., Bar Coun­sel, and Judith Het­her­ton, Senior Assis­tant Bar Coun­sel, were on the brief, for the Office of Bar Counsel.

Before REID, Asso­ciate Judge, FARRELL, Asso­ciate Judge, Retired,* and PRYOR, Senior Judge.

REID, Asso­ciate Judge: The Board on Pro­fes­sional Respon­si­bil­ity (“the Board”) has rec­om­mended that respon­dent Bruce A. Pelkey be dis­barred; that he be ordered to pay resti­tu­tion to the Client’s Secu­rity Fund with inter­est at a six per­cent rate; and that he be required to sat­isfy all out­stand­ing judg­ments and orders against him in favor of com­plainant Linda Cav­alli. The Board rec­om­mended dis­bar­ment based on its con­clu­sion that Mr. Pelkey vio­lated mul­ti­ple pro­vi­sions of the Dis­trict of Colum­bia Rules of Pro­fes­sional Con­duct. Mr. Pelkey chal­lenges the Board’s report and recommendation.

We con­clude that Bar Coun­sel pre­sented clear and con­vinc­ing evi­dence that Mr. Pelkey vio­lated the Rules of Pro­fes­sional Con­duct, includ­ing Rules 8.4 (b) (con­cern­ing crim­i­nal con­duct “that reflects adversely on the lawyer’s hon­esty, [or] trust­wor­thi­ness .…”), 8.4 © (relat­ing to dis­hon­est, fraud­u­lent and deceit­ful con­duct); 8.4 (d) (per­tain­ing to “con­duct that seri­ously inter­feres with the admin­is­tra­tion of jus­tice”); and 3.1, 3.2 (a), 3.3 (a)(1), and 4.4 (a) (relat­ing to friv­o­lous legal pro­ceed­ings, pro­ceed­ings that “would serve solely to harass” another, “false statement[s] of fact or law [made] to a tri­bunal,” and use of “means that have no sub­stan­tial pur­pose other than to … delay, or bur­den a third per­son”).  We also hold, in agree­ment with the Board, that, on this record, dis­bar­ment is the appro­pri­ate sanc­tion for Mr. Pelkey’s mis­con­duct, and that his rein­state­ment should be con­di­tioned upon his mak­ing full resti­tu­tion to the Clients’ Secu­rity Fund with inter­est, and his sat­is­fac­tion of all judg­ments against him and in favor of Ms. Cav­alli or related busi­ness entities.

FACTUAL SUMMARY

The record before us, which includes fac­tual find­ings made by the Hear­ing Com­mit­tee and affirmed by the Board, shows that Mr. Pelkey, an attor­ney admit­ted to the Dis­trict of Colum­bia Bar on April 3, 1995, prac­ticed law in Ari­zona after being admit­ted in that juris­dic­tion in 1982.[1] Even­tu­ally, he moved to Vir­ginia and accepted a post as a pro­fes­sor of law at Regent Uni­ver­sity. He also gave lec­tures in the Soviet Union, and he estab­lished an inter­na­tional con­sult­ing group. Ms. Cav­alli spe­cial­ized in inter­na­tional eco­nomic devel­op­ment[2] and worked as an invest­ment banker in Cal­i­for­nia before mov­ing to Virginia. For a short period of time, she joined an entity in which a for­mer United States Congressman, Mark Sil­jan­der, was involved and which was designed to encour­age invest­ment in the United States by for­eign investors.

Mr. Sil­jan­der intro­duced Ms. Cav­alli to Mr. Pelkey in June 1996. That was the begin­ning of a per­sonal rela­tion­ship and a mutual inter­est and col­lab­o­ra­tion in inter­na­tional busi­ness ven­tures, par­tic­u­larly through a pro­gram oper­ated by the United States Immi­gra­tion and Nat­u­ral­iza­tion Ser­vice (“INS”). Mr. Pelkey’s role emerged as that of attor­ney and legal coun­sel for the ven­tures (his duties involved draft­ing incor­po­ra­tion doc­u­ments and contracts), and Ms. Cav­alli used her exper­tise and expe­ri­ence to gen­er­ate pro­pos­als for immi­grant investors, as well as to pre­pare busi­ness plans and mar­ket­ing doc­u­ments. She also devel­oped invest­ment oppor­tu­ni­ties for funds result­ing from work with over­seas investors. Con­sult­ing or invest­ment enti­ties estab­lished by Mr. Pelkey and by Ms. Cav­alli played a role in the Pelkey/Cavalli busi­ness ven­tures. These included Con­sult­ing Group Inter­na­tional (“CGI”) and Trad­ing Part­ners Inter­na­tional (“TPI”), both owned by Mr. Pelkey; and Signet Ser­vices Group (“Signet”) and Tourism Sup­port Ser­vices (“TSS”), both belong­ing to Ms. Cav­alli.  Two other enti­ties, one of which became a sub­ject of dis­pute between Ms. Cav­alli and Mr. Pelkey, were Trad­ing Part­ners Inter­na­tional of Cal­i­for­nia (“TPIC”) and Amer­i­can Oppor­tu­nity Inter­na­tional Ser­vices (“AOIS”).

Between 1996 and 1998, Mr. Pelkey and Ms. Cav­alli not only planned cer­tain busi­ness ven­tures, but also estab­lished them and real­ized income from those ventures, particularly through a pro­posal (pre­pared by Ms. Cav­alli) for an export trad­ing Regional Cen­ter under INS’s Immi­grant Investor Pilot Pro­gram (also known as the U.S. Investor Visa Pro­gram). Busi­ness plans were devel­oped, pri­mar­ily by Ms. Cav­alli, for an African project under the Investor Pilot Pro­gram, with M. Tshia­mala Kadala Mianda of the Demo­c­ra­tic Repub­lic of the Congo; and for an invest­ment project with the Russ­ian Fund Vos­tock for which both Mr. Pelkey and Ms. Cav­alli served as the con­tacts. Ms. Cav­alli advanced approx­i­mately $32,000 of her own per­sonal funds to help cover the costs of the ven­tures.  The Hear­ing Com­mit­tee and the Board deter­mined that Mr. Pelkey had pro­vided legal ser­vices to the Pelkey/Cavalli busi­ness enti­ties. As the Board stated: “Although the Com­mit­tee does not spec­ify the busi­ness enti­ties, the record sup­ports a find­ing that [Mr. Pelkey] pro­vided legal advice, at a min­i­mum, for Trad­ing Part­ners Inter­na­tional of Cal­i­for­nia (made up of enti­ties owned by Respon­dent and Cav­alli) and [AOIS] (jointly cre­ated by Respon­dent and Cavalli).”

In April 1997, Ms. Cav­alli sub­mit­ted a pro­posal to INS for the estab­lish­ment of TPIC as a Regional Cen­ter under the Immi­grant Investor Pilot Pro­gram; the pro­posal stated that “TPIC is wholly owned by its two mem­bers, [TPI], a sub­sidiary of [CGI], and [Signet].” INS sent Ms. Cav­alli a let­ter in August 1997, approv­ing the pro­posal and des­ig­nat­ing TPIC as a Regional Cen­ter under the Immi­grant Investor Pilot Pro­gram. A related con­tract with Mr. Tshiamala and his Cal­i­for­nia export trad­ing com­pany, Somico LLC, was exe­cuted in Feb­ru­ary 1998, result­ing in $177,500 in fees for the Cavalli/Pelkey African investor busi­ness ven­ture. In addi­tion, Mr. Pelkey and Ms. Cav­alli trav­eled to Rus­sia in 1997 to solicit busi­ness from Fund Vos­tock, and a con­tract with that Fund was exe­cuted in Octo­ber 1997. Fund Vos­tock made a $50,000 invest­ment with TPIC in Novem­ber 1997, and another $50,000 invest­ment in 1998.

The fac­tual bases for many of Bar Counsel’s charges against Mr. Pelkey took place after the rela­tion­ship between Ms. Cav­alli and Mr. Pelkey crum­bled.[3] Ms. Cav­alli returned to Cal­i­for­nia in August 1998, and she learned, around 1999, that nei­ther her name nor Signet’s name appeared in the TPIC legal doc­u­ments that Mr. Pelkey drafted and filed, that he in fact had listed only his name and those of his enti­ties, CGI and TPI, as the own­ers and man­agers of TPIC. By around April 2000, the Cavalli/Pelkey busi­ness rela­tion­ship had dete­ri­o­rated sub­stan­tially and Ms. Cav­alli and Mr. Pelkey were locked in bit­ter lit­i­ga­tion in the Dis­trict of Colum­bia Supe­rior Court, filed by Ms. Cav­alli in May 2000, and in Cal­i­for­nia Supe­rior Court, lodged by Mr. Pelkey in August 2000. A heated, frac­tious, and bit­ter dis­pute erupted con­cern­ing an Arbi­tra­tion Agree­ment signed by both which was designed to resolve the lit­i­ga­tion in the Dis­trict of Colum­bia and the Cal­i­for­nia courts.

Mr. Pelkey and Ms. Cav­alli dis­agreed over whether Ms. Cav­alli was a busi­ness part­ner (Ms. Cavalli’s posi­tion) or a con­sul­tant (Mr. Pelkey’s posi­tion). Ms. Cav­alli insisted that Mr. Pelkey had agreed to take respon­si­bil­ity for form­ing TPIC as an entity wholly owned by TPI (Mr. Pelkey’s entity) and Signet (Ms. Cavalli’s entity), with Mr. Pelkey as a “Man­ag­ing Part­ner” and Ms. Cav­alli also as a “Man­ag­ing Part­ner.” The Hear­ing Com­mit­tee cred­ited the tes­ti­mony of Ms. Cav­alli, and found that doc­u­ments cre­ated in 1996 and 1997, including a Feb­ru­ary 26, 1997 doc­u­ment pre­pared by Ms. Cav­alli and per­son­ally edited by Mr. Pelkey in his own hand­writ­ing, con­firmed not only that Ms. Cav­alli was intended to be a busi­ness part­ner for the ven­tures, but also that Mr. Pelkey was not “the prime mover in the estab­lish­ment and suc­cess of th[e] immi­gra­tion investor pro­gram,” as he claimed.[4] In addi­tion, the Board asserted: “Respon­dent argues that [Ms.] Cav­alli was never an equity part­ner in any of his com­pa­nies, but the record is replete with evi­dence to sup­port the [Hear­ing] Committee’s find­ings to the contrary.”

In addi­tion to dis­agree­ing about whether Ms. Cav­alli was a busi­ness part­ner or a con­sul­tant, Mr. Pelkey and Ms. Cav­alli quar­reled about the funds gen­er­ated from their busi­ness ven­tures. These funds were deposited in Mr. Pelkey’s bank accounts as they were received, and he was the sole sig­na­tory on the accounts. In April and June 1998, respectively, Ms. Cav­alli and Mr. Pelkey placed $30,000 from the Fund Vos­tock project and $50,000 from the African project into Ms. Cavalli’s invest­ment account in Costa Rica, TSS. Mr. Pelkey claimed that these funds belonged to him, and his efforts to retrieve the funds invested in TSS, as well as result­ing div­i­dends, sparked the lit­i­ga­tion filed by Ms. Cav­alli and by him. In late 1999, Mr. Pelkey began to demand the return of funds from the TSS invest­ment which he then cal­cu­lated to be $125,000 (the orig­i­nal $80,000 invest­ment plus div­i­dends). After receiv­ing let­ters from Mr. Pelkey’s attor­ney, Ms. Cav­alli autho­rized the release of two pay­ments to Mr. Pelkey, $15,000 in late Octo­ber and $19,000 in late Novem­ber. The Hear­ing Com­mit­tee deter­mined that, in Decem­ber 1999, a law firm rep­re­sent­ing Mr. Pelkey accused Ms. Cav­alli of “fraud­u­lent actions” and demanded $110,000 within fif­teen days; an ear­lier Octo­ber 1999 let­ter stated that Ms. Cav­alli would be in “vio­la­tion of the Cal­i­for­nia Penal Code” if she failed to remit the demanded sums of money.

Mr. Pelkey’s actions regard­ing an arbi­tra­tion agree­ment, designed to medi­ate the com­plaints filed in the Dis­trict of Colum­bia and Cal­i­for­nia courts, not only served as the fac­tual basis of some of Bar Counsel’s charges and the Hear­ing Committee’s find­ings, but also formed the basis for the Court of Appeal of the State of California’s deci­sion to impose a mon­e­tary sanc­tion against him. After Mr. Pelkey and Ms. Cav­alli exe­cuted their Arbi­tra­tion Agree­ment on July 19, 2001, Mr. Pelkey balked at arbi­trat­ing. The Hear­ing Com­mit­tee deter­mined that he “signed [the agree­ment to arbi­trate] … in part, to avoid going to trial in the civil action pend­ing in the [Dis­trict], but with the hid­den intent to later chal­lenge the arbi­tra­tion agree­ment if things didn’t work out.” He began to draft a dec­la­ra­tion in sup­port of a motion to rescind the agree­ment on July 20, 2001, and he per­son­ally filed the motion and dec­la­ra­tion on March 23, 2002 in Cal­i­for­nia, after Ms. Cavalli had filed a for­mal demand for arbi­tra­tion in Feb­ru­ary 2002, fol­low­ing unsuc­cess­ful efforts to arbi­trate in accor­dance with the arbi­tra­tion agree­ment. Mr. Pelkey blamed Ms. Cavalli for forc­ing him to sign the arbi­tra­tion agree­ment, and com­plained about the arbi­tra­tion fees.

The Cal­i­for­nia Supe­rior Court denied Mr. Pelkey’s motion to rescind the arbi­tra­tion agree­ment on June 21, 2002, and on June 27, 2003, after hear­ing tes­ti­mony from Mr. Pelkey and Ms. Cav­alli, the arbi­tra­tor issued a deci­sion find­ing that “[Mr.] Pelkey had com­mit­ted fraud in his deal­ings with Ms. Cav­alli.”[5] The arbi­tra­tor awarded her approx­i­mately $300,000 ($238,822 in com­pen­satory dam­ages and $58,843 in attorney’s fees and costs).[6] The Cal­i­for­nia Supe­rior Court affirmed the arbitrator’s award on August 18, 2004, and ordered Mr. Pelkey to pay Ms. Cav­alli $22,000 in addi­tional attorney’s fees. Unde­terred, Mr. Pelkey lodged three sep­a­rate appeals relat­ing to the lit­i­ga­tion, prompt­ing the Court of Appeal of the State of Cal­i­for­nia, on May 31, 2005, to ver­bally chas­tise him for “bla­tant misrepresentation” of one of the court’s rul­ings, “distort[ion] of the court’s com­ments at a hear­ing,” and for a mer­it­less appeal. The court imposed a sanc­tion in the amount of $6,000, to be paid to Ms. Cavalli.[7] The Hear­ing Committee’s exam­i­na­tion of “ver­i­fied state­ments” by Mr. Pelkey, made in a March 14, 2001 doc­u­ment, raised other ques­tions about Mr. Pelkey’s hon­esty; the Hear­ing Com­mit­tee cited sev­eral state­ments that it “found to be false based on the record” it had com­piled; these included:

I have never been in busi­ness with Ms. Cav­alli, in any manner whatsoever.

Ms. Cav­alli made absolutely no invest­ments into any of the busi­nesses .… There were never any finan­cial con­tri­bu­tions made by Ms. Cav­alli into any of the businesses .…

[N]o joint busi­ness activ­i­ties were ever con­ducted by Ms. Cavalli and I .… [T]here was no ‘2 ½ year busi­ness rela­tion­ship’ between Ms. Cav­alli and I.

[T]here were never any joint assets of any kind or nature what­so­ever, between Ms. Cav­alli and I or between Ms. Cav­alli and my businesses.

Ms. Cav­alli has cre­ated a false impres­sion … that our ‘per­sonal rela­tion­ship’ was some­thing more than a friend­ship .… Ms. Cavalli and I have never had any roman­tic relationship .…

While the Hear­ing Com­mit­tee rec­om­mended that the charges under Rules 1.15 (a) and (b) “be dis­missed as not proven by clear and con­vinc­ing evi­dence on the exis­tence of an attorney-client rela­tion­ship,” the Board con­cluded that “based on the [Hear­ing] Committee’s find­ings, … [Mr. Pelkey’s] con­duct did amount to a mis­ap­pro­pri­a­tion of the funds of two of his cor­po­rate clients”; that “he held him­self out as a lawyer and exploited his posi­tion both in his deal­ings with [Ms.] Cav­alli as well as his work on behalf of their jointly owned com­pa­nies, TPIC and AOIS”; and that “[t]he fidu­ciary duty that [he] owed to these com­pa­nies bears a direct rela­tion­ship to the finan­cial ser­vices he pro­vided.” Hence, “[b]y treat­ing the finan­cial assets of [TPIC and AOIS] as his own, … [Mr. Pelkey] engaged in inten­tional mis­ap­pro­pri­a­tion” under Rule 1.15 (a). Fur­ther­more, the Board declared that because Mr. Pelkey “failed promptly to ren­der a full account­ing of a client’s entrusted funds [that is, those belong­ing to TPIC and AOIS] when requested to do so,” and fur­ther, because he “uti­lized [his attor­ney accounts — three belong­ing to CGI and two to TPIC] interchangeably for his own per­sonal use, … Bar Coun­sel  estab­lished by clear and con­vinc­ing evi­dence” that he vio­lated Rule 1.15 (b).[8]

The Board sus­tained the Hear­ing Committee’s find­ings and con­clu­sions relat­ing to Mr. Pelkey’s vio­la­tions of Rules 3.1 (fil­ing friv­o­lous appeals in the Cal­i­for­nia lit­i­ga­tion), 3.3 (a) (mak­ing false state­ments in the sworn March 14, 2001 dec­la­ra­tion filed in the Supe­rior Court of Cal­i­for­nia), 3.2 (a) and 4.4 (caus­ing delay solely to harass and bur­den Ms. Cav­alli through his efforts to rescind the arbi­tra­tion agree­ment and other behav­ior). The Board also addressed the alleged vio­la­tions of Rule 8.4. Con­trary to the con­clu­sion of the Hear­ing Com­mit­tee that Bar Coun­sel failed to prove “the ‘intent’ ele­ment” of the Rule 8.4 (b) violation, the Board “f[ou]nd that [Mr. Pelkey’s] trans­fer of funds from an account belong­ing to a com­pany jointly owned by him­self and [Ms.] Cav­alli to an account within his exclu­sive con­trol con­sti­tuted theft …[,] ” and hence, he “com­mit­ted a crime that reflects adversely on a lawyer’s hon­esty, trust­wor­thi­ness or fit­ness as a lawyer .…” The Hear­ing Com­mit­tee and the Board both agreed that Mr. Pelkey vio­lated Rule 8.4 © by being dis­hon­est in his busi­ness deal­ings with Ms. Cav­alli. Both also con­cluded that Mr. Pelkey vio­lated Rule 8.4 (d), seri­ously inter­fer­ing with the admin­is­tra­tion of jus­tice, when he filed friv­o­lous motions and appeals in the Cal­i­for­nia courts.[9]

Based upon Mr. Pelkey’s rule vio­la­tions, espe­cially Rule 8.4 ©, the Hear­ing Com­mit­tee rec­om­mended a three-year sus­pen­sion with rein­state­ment con­di­tioned on a fit­ness require­ment. How­ever, partly in light of its con­clu­sion that Mr. Pelkey vio­lated Rules 1.15 (a) and (b) by engag­ing in inten­tional mis­ap­pro­pri­a­tion, the Board rec­om­mended dis­bar­ment as a sanc­tion, but the Board indi­cated that even with­out a find­ing of inten­tional mis­ap­pro­pri­a­tion, dis­bar­ment was the appro­pri­ate sanction.

ANALYSIS

Stan­dard of Review

“When exam­in­ing a Report and Rec­om­men­da­tion from the Board on Pro­fes­sional Respon­si­bil­ity, … [w]e must accept the find­ings of fact made by the Board unless they are unsup­ported by sub­stan­tial evi­dence of the record, and shall adopt the rec­om­mended dis­po­si­tion of the Board unless to do so would fos­ter a ten­dency toward incon­sis­tent dis­po­si­tions for com­pa­ra­ble con­duct or oth­er­wise would be unwar­ranted.”[10] Sim­i­larly, “the Board is oblig­ated to accept the hear­ing committee’s fac­tual find­ings if those find­ings are sup­ported by sub­stan­tial evi­dence in the record, viewed as a whole.”[11] This court owes no “def­er­ence to the Board’s deter­mi­na­tion of ulti­mate facts, which are really con­clu­sions of law,”[12] “and we have the oblig­a­tion to make our own deter­mi­na­tion on the issue.”[13]

The Rule 8.4 (b), © and (d), and Rule 3.3 (a), 3.1, 3.2 (a), and 4.4 (a) Violations

Mr. Pelkey chal­lenges the Board’s find­ings and con­clu­sions that he vio­lated Rules 8.4 (b), © and (d).[14] With respect to Rule 8.4 (b), he con­tends that the Bar Coun­sel did not present clear and con­vinc­ing evi­dence of theft, specif­i­cally, that he “had the req­ui­site spe­cific intent” or that he made a “trans­fer of funds not belong­ing to him.” He also empha­sizes the Hear­ing Committee’s con­clu­sion with respect to the Rule 8.4 (b) vio­la­tion, that the evi­dence was insuf­fi­cient to “find that Respon­dent inten­tion­ally defrauded [Ms.] Cav­alli, or oth­er­wise com­mit­ted a crim­i­nal act.” As for Rule 8.4 © relat­ing to dis­hon­esty, Mr. Pelkey claims that the evi­dence pre­sented by Bar Coun­sel failed to estab­lish “the nec­es­sary dis­hon­est intent,” and that the Hear­ing Com­mit­tee made a clear fac­tual error by not find­ing that he filed the orga­ni­za­tion papers for TPIC show­ing that he wholly owned that entity on April 9, 1997, approximately three weeks before Ms. Cav­alli sub­mit­ted the INS appli­ca­tion on April 28, 1997. Fur­ther­more, he asserts, the Board “improp­erly applied” the District’s Rule 8.4 (d) and Rule 3.3 (a)[15] instead of the Cal­i­for­nia rules because the charged actions took place in the Cal­i­for­nia judi­cial pro­ceed­ing.[16]

Bar Coun­sel argues that “[t]he Board cor­rectly found that [Mr. Pelkey’s] ‘out­right tak­ing’ of the funds owed to [Ms.] Cav­alli … con­sti­tuted theft in vio­la­tion of Rule 8.4 (b) .…” In deter­min­ing whether Mr. Pelkey engaged in theft, Bar Coun­sel asserts, “the Board adopted the [Hear­ing] Committee’s find­ing that [Mr. Pelkey] inten­tion­ally led [Ms.] Cav­alli to believe that she was an equal part­ner in their busi­ness ven­ture and would share equally in its prof­its,” and the Board “also adopted the [Hear­ing] Committee’s find­ing that [Mr. Pelkey] “dishonestly and sur­rep­ti­tiously pre­pared and filed doc­u­ments omit­ting [Ms.] Cav­alli from an own­er­ship inter­est, and then engaged in an ‘out­right tak­ing’ or ‘appro­pri­a­tion of money right­fully belong­ing to his busi­ness part­ner.’” Fur­ther­more, Bar Coun­sel main­tains that in “delib­er­ately deceiv[ing] and defraud[ing] [Ms.] Cav­alli by lead­ing her to believe that they were part­ners in their joint busi­ness ven­ture,” Mr. Pelkey vio­lated Rule 8.4 © in addi­tion to Rule 8.4 (b). Bar Coun­sel points out that for “[o]ver a two and a half year period,” Mr. Pelkey “inten­tion­ally led [Ms.] Cav­alli to believe they were equal part­ners in the busi­ness ven­ture and thereby induced her to con­tribute more than $32,000 of her own funds and her full-time ser­vices”; but then “‘inten­tion­ally and sur­rep­ti­tiously’ excluded her from an own­er­ship inter­est” and took the funds from the ven­tures. As for Rule 8.4 (d) and Rule 3.3 (a), Bar Coun­sel con­tends that these Dis­trict rules apply because Mr. Pelkey “made false []rep­re­sen­ta­tions and harassed [Ms.] Cav­alli in the action before the D.C. Supe­rior Court,” and Mr. Pelkey was “nei­ther licensed to prac­tice in Cal­i­for­nia nor admit­ted to prac­tice before the courts there.”

First, our de novo review of the record con­strains us to con­clude, in agree­ment with Bar Coun­sel and the Board, that Mr. Pelkey vio­lated Rule 8.4 (b). We have rec­og­nized that “a crim­i­nal con­vic­tion is [not] a pre­req­ui­site for find­ing a vio­la­tion of Rule 8.4 (b).”[17] We hold in this dis­ci­pli­nary pro­ceed­ing that Bar Coun­sel proved by clear and con­vinc­ing evi­dence that Mr. Pelkey com­mit­ted theft by “wrong­fully obtain[ing] or us[ing] the prop­erty of another [Ms. Cav­alli] with intent: (1) To deprive the other of a right to the prop­erty or a ben­e­fit of the prop­erty; or (2) To appro­pri­ate the prop­erty to his … own use .…”[18] With respect to the intent ele­ment, “theft under Dis­trict law ‘does not require an intent to appro­pri­ate prop­erty per­ma­nently.’”[19]

The record evi­dence com­piled by Bar Coun­sel in this case estab­lished that Ms. Cav­alli was Mr. Pelkey’s busi­ness part­ner in ven­tures per­tain­ing both to the con­tract with Mr. Tshiamala and Somico LLC under the U.S. Investor Visa Pro­gram, and the con­tract with Fund Vos­tock, and that she con­tributed $32,000 of her own funds as well as her full-time labor to sup­port these ven­tures. A Feb­ru­ary 1997 doc­u­ment edited by Mr. Pelkey in his own hand­writ­ing con­firmed that Ms. Cav­alli was intended to be a busi­ness part­ner for the ven­tures and, as such, she was enti­tled to have her entity, Signet, included in the own­er­ship of TPIC and to share the returns gen­er­ated in behalf of TPIC. Yet, Mr. Pelkey not only left Signet out of TPIC’s own­er­ship papers, but also put the mon­e­tary returns from these ven­tures in his own bank accounts which he solely con­trolled, thus tak­ing or appro­pri­at­ing the monies, some of which belonged to Ms. Cav­alli, and using them as he saw fit. Mr. Pelkey’s argu­ment that the Hear­ing Com­mit­tee made a clear fac­tual error by not find­ing that he filed the orga­ni­za­tion papers for TPIC before Ms. Cav­alli sub­mit­ted the INS appli­ca­tion, ignores the evi­dence cred­ited by the Hear­ing Com­mit­tee (and ear­lier by the arbi­tra­tor) that Ms. Cav­alli was intended to be a busi­ness and equity part­ner, not a con­sul­tant, and hence, Signet should have been named in the orga­ni­za­tion doc­u­ments as well as Ms. Cav­alli as a Man­ag­ing Part­ner. The fact that Mr. Pelkey may have filed the busi­ness orga­ni­za­tion doc­u­ments before the INS appli­ca­tion was sub­mit­ted is of no moment.

More­over, through his legal coun­sel who accused Ms. Cav­alli of “fraud­u­lent actions,” Mr. Pelkey boldly insisted that Ms. Cav­alli pay him $125,000 from the TSS Costa Rican invest­ment account (the $80,000 placed in the account from the Pelkey/Cavalli busi­ness ven­tures plus what Mr. Pelkey deemed to be div­i­dends owed on that sum); Ms. Cav­alli felt com­pelled to send him $34,000 of the TSS funds. Mr. Pelkey per­sisted and through lit­i­ga­tion he delib­er­ately sought to deprive Ms. Cav­alli of any assets result­ing from the Pelkey/Cavalli ven­tures. Mr. Pelkey’s actions demon­strated not only an intent to deprive Ms. Cav­alli of funds prop­erly belong­ing to her, but also to take and claim the other returns on the Pelkey/Cavalli busi­ness ven­tures as his own, to be placed in his bank accounts under his sole con­trol, and to be used as he saw fit.

Sec­ond, our de novo review of the record fur­ther leaves us with no doubt that Bar Coun­sel intro­duced more than suf­fi­cient evi­dence to estab­lish Mr. Pelkey’s bla­tant and uncon­scionable vio­la­tion of Rule 8.4 © over the course of sev­eral years. At the out­set of our analy­sis of this charged vio­la­tion, we note that “‘[a]cts unre­lated to the prac­tice of law may nonethe­less vio­late [Rule 8.4 ©].”[20] In terms of proof, “[a] vio­la­tion of Rule 8.4 © requires a show­ing that a respon­dent was dis­hon­est, deceit­ful, fraud­u­lent or mis­rep­re­sented the truth.”[21] “Dis­hon­esty is a lack of hon­esty, pro­bity, integrity and straight­for­ward­ness”;[22] and “[d]eceit is the active sup­pres­sion of facts by one bound to dis­close them, or the giv­ing of ‘infor­ma­tion of other facts which are likely to mis­lead for want of com­mu­ni­ca­tion of that fact.’”[23]

Mr. Pelkey not only was dis­hon­est but also deceit­ful within the mean­ing of Rule 8.4 ©. In his June 2003 rul­ing, the arbi­tra­tor char­ac­ter­ized Mr. Pelkey as “untruth­ful dur­ing live sworn tes­ti­mony at the Arbi­tra­tion Hear­ing,” deter­min­ing that Mr. Pelkey made “false prior state­ments under oath,” and that “doc­u­ments were intro­duced which con­tra­dicted salient por­tions of his tes­ti­mony.” Nev­er­the­less, Mr. Pelkey’s bla­tant dis­hon­esty per­sisted in his 2005 tes­ti­mony before the Hear­ing Com­mit­tee. In its Decem­ber 16, 2005 report, the Hear­ing Com­mit­tee deter­mined that Mr. Pelkey’s “tes­ti­mony was … largely lack­ing in cred­i­bil­ity – par­tic­u­larly on the cru­cial fac­tual issues: (1) were he and [Ms.] Cav­alli part­ners, (2) was it under­stood that [Ms.] Cav­alli would have an own­er­ship inter­est in their ven­tures, par­tic­u­larly TPIC, and (3) did they have a personal/romantic rela­tion­ship in the 1996–1998 timeframe.” Moreover, as we have empha­sized pre­vi­ously, the Feb­ru­ary 1997 doc­u­ment edited by Mr. Pelkey in his own hand­writ­ing con­firmed that the two intended Ms. Cav­alli to be a busi­ness part­ner for the Pelkey/Cavalli busi­ness ven­tures, but Mr. Pelkey stead­fastly and dis­hon­estly attempted to deny this fact as well as the fact that Ms. Cav­alli was an equity part­ner in the ven­tures. Fur­ther­more, the Hear­ing Com­mit­tee ascer­tained that sev­eral “ver­i­fied statements” by Mr. Pelkey in a March 2001, doc­u­ment were dis­hon­est includ­ing: “I have never been in busi­ness with Ms. Cav­alli, in any man­ner what­so­ever”; “There were never any finan­cial con­tri­bu­tions made by Ms. Cav­alli into any of the busi­nesses”; “There was no ‘2 ½ year busi­ness rela­tion­ship’ between Ms. Cav­alli and I” and “Ms. Cav­alli and I have never had any roman­tic rela­tion­ship.” Even the Court of Appeal of the State of Cal­i­for­nia found it nec­es­sary to chas­tise Mr. Pelkey on May 31, 2005, for “bla­tant mis­rep­re­sen­ta­tion” of one of its rul­ings, and for “distort[ion] of the court’s com­ments at a hearing.”

All of the state­ments men­tioned above which were made by Mr. Pelkey, the cred­i­bil­ity deter­mi­na­tions made by the arbi­tra­tor and the Hear­ing Com­mit­tee, and the chastis­ing com­ments of the Cal­i­for­nia Court of Appeal reflect, Mr. Pelkey’s glar­ing lack of honesty, integrity and pro­bity. More­over, Mr. Pelkey’s actions in attempt­ing to sup­press the truth regard­ing his busi­ness and per­sonal rela­tion­ships with Ms. Cav­alli, despite his oblig­a­tion to be truth­ful, can only be described as deceit­ful and as a delib­er­ate effort to mis­lead the arbi­tra­tor and the Hear­ing Com­mit­tee. Thus, we con­clude that Bar Coun­sel proved by clear and con­vinc­ing evi­dence that Mr. Pelkey clearly vio­lated Rule 8.4 ©. Third, based on our de novo review, we con­clude that Bar Coun­sel pre­sented clear and con­vinc­ing evi­dence that Mr. Pelkey vio­lated Rules 8.4 (d), 3.1, 3.2 (a), 3.3 (a)(1), and 4.4 (a). In fil­ing friv­o­lous appeals in the Cal­i­for­nia court, and in mov­ing in the court both to rescind the arbi­tra­tion agree­ment after sign­ing it and to remove the arbi­tra­tor after par­tic­i­pat­ing in the selec­tion of him, Mr. Pelkey vio­lated Rule 8.4 (d) by “engag[ing] in con­duct that seri­ously inter­feres with the admin­is­tra­tion of jus­tice,” and 3.3 (a)(1)[24] by fil­ing a false ver­i­fied dec­la­ra­tion in a tri­bunal. He also ran afoul of Rules 3.1[25] and 3.2 (a)[26] by harass­ing Ms. Cav­alli with respect to the arbi­tra­tion agree­ment, and Rule 4.4 (a)[27] by bur­den­ing her with an unnec­es­sar­ily pro­tracted arbi­tra­tion pro­ceed­ing and lit­i­ga­tion in the Cal­i­for­nia courts,[28] as he engaged in tac­tics to avoid and pre­vent the arbi­tra­tion, even though he had signed an agree­ment con­sent­ing to arbitration.

Sanc­tion

As his first posi­tion on sanc­tion, Mr. Pelkey claims that his behav­ior mer­its no sanc­tion. As he put it: “[I]t is Mr. Pelkey’s posi­tion that he has com­mit­ted no vio­la­tion of the Rules of Pro­fes­sional Con­duct, and there­fore … no sanc­tion is appro­pri­ate.” As a sec­ondary posi­tion, he asserts that “the sanc­tion should not be the Board’s rec­om­men­da­tion of dis­bar­ment. He claims that the Board erred in find­ing that he com­mit­ted crim­i­nal theft and fraud and other acts of dis­hon­esty,” but if the court “dis­agrees,” “he should not be disbarred” under either In re Slat­tery or In re Gil; and that if the court deter­mines that the only vio­la­tions are those relat­ing to the Cal­i­for­nia lit­i­ga­tion, “ a brief sus­pen­sion is the appro­pri­ate sanc­tion.” In con­trast, both Bar Coun­sel and the Board rec­om­mend dis­bar­ment as the appro­pri­ate sanc­tion; and the Hear­ing Com­mit­tee, based pri­mar­ily on the Rule 8.4 © vio­la­tion, rec­om­mend a three-year sus­pen­sion with a fit­ness require­ment for reinstatement. Notably, the Board asserts, “even if the [c]ourt were to find that [Mr. Pelkey] had not engaged in inten­tional mis­ap­pro­pri­a­tion of entrusted funds, our rec­om­mended sanc­tion would be disbarment.”

“A rec­om­men­da­tion of the Board with respect to a pro­posed sanc­tion comes to this court with a strong pre­sump­tion in favor of its impo­si­tion.”[29] How­ever, we take into con­sid­er­a­tion sev­eral fac­tors, includ­ing, but not lim­ited to:

(1) the seri­ous­ness of the con­duct at issue; (2) the prej­u­dice, if any, to the client which resulted from the con­duct; (3) whether the con­duct involved dis­hon­esty and/or mis­rep­re­sen­ta­tion; (4) the pres­ence or absence of vio­la­tions of other pro­vi­sions of the dis­ci­pli­nary rules[;] (5) whether the attor­ney had a pre­vi­ous dis­ci­pli­nary his­tory; (6) whether or not the attor­ney acknowl­edged his or her wrong­ful con­duct; and (7) circumstances in mit­i­ga­tion of the mis­con­duct.[30]

“Gen­er­ally speak­ing, if the Board’s rec­om­mended sanc­tion falls within a wide range of accept­able out­comes, it will be adopted and imposed.”[31] But, “[i]n the final analy­sis, it is the court which decides the sanc­tion to be imposed.”[32]

We have imposed the sanc­tion of dis­bar­ment in two types of dis­hon­esty cases – (1) intentional or reck­less mis­ap­pro­pri­a­tion where the pre­sump­tive sanc­tion is dis­bar­ment,[33] and (2) dis­hon­esty “of the fla­grant kind.”[34] Related to the sec­ond cat­e­gory are two cases, (a) one in which we described the respondent’s mis­con­duct as “grave enough to require disbarment” due to vio­la­tions of Rules 8.4 (b) and ©, and where the Board had rec­om­mended dis­bar­ment for “crim­i­nal con­duct and ‘extremely seri­ous acts of dis­hon­esty’”;[35] and (b) the other in which the attor­ney was “in a posi­tion of trust,” (although not an attorney-client relationship) and took “fidu­ciary funds” for his own “per­sonal use,”[36] and we imposed dis­bar­ment due to vio­la­tions of Rules 8.4 (b) and ©.[37]

Our con­sid­er­a­tion of the fac­tors which we apply to deter­mine the appro­pri­ate sanc­tion leads us to accept the Board’s rec­om­men­da­tion that the appro­pri­ate sanc­tion in this case is dis­bar­ment. We accept the Board’s rec­om­men­da­tion because of Mr. Pelkey’s (1) persistent, protracted, and extremely seri­ous and fla­grant acts of dis­hon­esty (wit­nessed by the arbitrator, the hear­ing com­mit­tee, and the Cal­i­for­nia State Court of Appeal, and detailed herein); (2) his crim­i­nal con­duct which amounts to theft as he sought to deprive Ms. Cav­alli (with whom he also had a personal/romantic rela­tion­ship that he denied) of any of the ben­e­fits of her labor and invest­ments in the Pelkey/Cavalli busi­ness ven­tures by tak­ing and con­trol­ling the mon­e­tary fruits of the ven­tures for his own per­sonal use; as well as (3) his uncon­scionable actions in the courts, espe­cially the Cal­i­for­nia courts. Although Mr. Pelkey’s dis­hon­esty dif­fers in some respects, we believe that it is akin to the seri­ous­ness of the dis­hon­esty which prompted us to dis­bar the respon­dents in Gil (who took and used over $60,000 of a friend’s money), Slat­tery (who, despite his posi­tion of trust, took over $10,000 from the bank account of a fra­ter­nal orga­ni­za­tion), and Goffe (whose behav­ior man­i­fested repeated dis­hon­esty and fab­ri­ca­tion of evi­dence over an extended period of time). While Mr. Pelkey’s behav­ior is not as egre­gious as that of the respon­dent in Corizzi, it does “reflect[] a con­tin­u­ing and per­va­sive indif­fer­ence to the oblig­a­tions of hon­esty in the judi­cial sys­tem,”[38] as well as in the dis­ci­pli­nary sys­tem, and in his busi­ness rela­tion­ships with Ms. Cav­alli which placed him in a posi­tion of trust.

Mr. Pelkey has not been sub­jected to prior dis­ci­pline, but we agree with the Board that “this fac­tor [does not] mate­ri­ally impact[] the sanc­tion appro­pri­ate for the course of mis­con­duct engaged in by [him] over sev­eral years.” Mr. Pelkey’s behav­ior forced Ms. Cavalli to take legal and admin­is­tra­tive action and to defend her­self against his unwarranted, dishonest, and unscrupu­lous admin­is­tra­tive and judi­cial actions. The arbitrator’s award to Ms. Cav­alli of around $300,000, the Cal­i­for­nia courts’ award of attorney’s fees to her, and the Cal­i­for­nia Court of Appeal’s mon­e­tary sanc­tion against Mr. Pelkey (payable to her) all under­score the seri­ous­ness of his mis­con­duct. Fur­ther­more, Mr. Pelkey’s lack of remorse has been evi­dent through­out the dis­ci­pli­nary pro­ceed­ing and, despite the over­whelm­ing evi­dence against him, he con­tin­ues to resist acknowl­edg­ing his wrong­ful and unethical conduct.

Accord­ingly, for the fore­go­ing rea­sons, it is ORDERED that respon­dent Bruce A. Pelkey is dis­barred from the prac­tice of law in the Dis­trict of Colum­bia, effec­tive thirty days from the date of this opin­ion; and it is FURTHER ORDERED that his rein­state­ment is con­di­tioned upon mak­ing full resti­tu­tion to the Clients’ Secu­rity Fund with inter­est at the legal rate of 6% and sat­is­fy­ing all out­stand­ing judg­ments against him in favor of Linda Cav­alli or the related busi­ness entities.

So ordered.

Notes

* Judge Far­rell was an Asso­ciate Judge of the court at the time of argu­ment. His sta­tus changed to Asso­ciate Judge, Retired, on July 1, 2008.

1 In addi­tion to his law degree from Pep­per­dine Uni­ver­sity School of Law, Mr. Pelkey holds a mas­ters degree in busi­ness admin­is­tra­tion from Ari­zona State University.

2 Ms. Cav­alli grad­u­ated with high­est hon­ors from the Uni­ver­sity of Cal­i­for­nia at Davis.

3 Mr. Pelkey and Ms. Cav­alli were first intro­duced socially in 1996 and they had both a roman­tic and a busi­ness rela­tion­ship for approx­i­mately two and one-half years.

4 In find­ing Ms. Cavalli’s tes­ti­mony cred­i­ble, the Hear­ing Com­mit­tee stated:

Hav­ing observed Ms. Cav­alli for two days on the wit­ness stand,  we find her tes­ti­mony most can­did and truth­ful. She did not try to avoid answer­ing ques­tions, her answers were respon­sive to the ques­tions – not eva­sive, the doc­u­men­tary evi­dence rein­forced her story, and there was no impeach­ment of her testimony.

In con­trast, the Hear­ing Com­mit­tee dis­cred­ited Mr. Pelkey’s tes­ti­mony, say­ing in part:

[Mr. Pelkey’s] tes­ti­mony was found to be largely lack­ing in cred­i­bil­ity – par­tic­u­larly on the cru­cial fac­tual issues: (1) were he and Cav­alli part­ners, (2) was it under­stood that Cav­alli would have an own­er­ship inter­est in their ven­ture, par­tic­u­larly TPIC, and (3) did they have a personal/romantic rela­tion­ship in the 1996–1998 time­frame. Respondent’s demeanor dur­ing six days of hear­ings was exem­plary, as was every­one else involved in the hear­ing. How­ever, on many occa­sions dur­ing his testimony, Respondent sim­ply strayed from what we per­ceive to be the truth. This was a heavily-documented record (five large vol­umes of exhibits), includ­ing many mem­o­randa, e-mails, drafts, mar­ket­ing brochures, reports/studies for clients, correspondence, and court papers (includ­ing ver­i­fied dec­la­ra­tions) pre­pared and filed in the 2000–2005 lit­i­ga­tion between these two per­sons. Both dur­ing Respondent’s direct tes­ti­mony (over a say), as well as a day and a half of cross exam­i­na­tion by the Hear­ing Com­mit­tee, it was clear that he was dis­sem­bling badly over cer­tain key doc­u­ments – doc­u­ments often from his own busi­ness files, and in other ways.

The Hear­ing Com­mit­tee then pro­vided sev­eral pages of con­crete exam­ples to sup­port its cred­i­bil­ity deter­mi­na­tion con­cern­ing Mr. Pelkey.

5 The arbi­tra­tor found

by clear and con­vinc­ing evi­dence that [Mr.] Pelkey inten­tion­ally mis­led [Ms.] Cav­alli as to his true plan for their joint busi­ness rela­tion­ship. [Ms.] Cav­alli thought she was an equal part­ner with [Mr.] Pelkey based on state­ments of [Mr.] Pelkey, documents and con­duct of the par­ties; and [Mr.] Pelkey at all times fraud­u­lently con­cealed the fact that he never intended to treat [Ms.] Cav­alli as a partner.

6 The arbi­tra­tor deter­mined that Mr. Pelkey had been “untruth­ful dur­ing live sworn tes­ti­mony at the Arbi­tra­tion Hear­ing,” and that “[i]n addi­tion to con­tra­dict­ing him­self under oath, and mak­ing false prior state­ments under oath, a num­ber of doc­u­ments were intro­duced into evi­dence which con­tra­dict salient por­tions of his testimony.”

7 Ms. Cav­alli had requested around $19,000 in attorney’s fees and costs. In explain­ing the rea­sons for the sanc­tion, the court stated in part:

There is no valid rea­son for this appeal. The bulk of Pelkey’s argu­ments are noth­ing more than an attempt to relit­i­gate his pre­vi­ous failed appeal of the final June 21, 2002 fee award, which is now long since final. His insis­tence that this order remains sub­ject to col­lat­eral attack under a highly dubi­ous the­ory of void­ness points strongly to a motive to harass and delay .…

He … stretches the record beyond recog­ni­tion in the char­ac­ter­i­za­tion of his Feb­ru­ary 18, 2003 let­ter. He sim­i­larly dis­torts the court’s com­ments at the hear­ing on his Code of Civil Pro­ce­dure … motion .… Finally, Pelkey’s attempt to dis­guise the court’s con­tin­u­ance of his … motion as a denial, and then to chal­lenge that non-ruling on appeal, is patently frivolous.

If a rep­u­ta­tion for hon­esty is the coin of the judi­cial realm, here Pelkey has squan­dered his riches on such posi­tions most unwisely. He has dragged Cav­alli and this court into a fac­tual and legal thicket, requir­ing an unduly large invest­ment of the plaintiff’s time and resources and the court’s as well .…

8 The Hear­ing Com­mit­tee rec­om­mended that the charges under Rules 1.7 (b)(4), 1.8 (a) and (g)(2), and 1.15 (a) and (b) “be dis­missed as not proven by clear and con­vinc­ing evi­dence on the exis­tence of an attorney-client rela­tion­ship.” Because of its con­clu­sions under Rules 1.15 (a) and (b) and its rec­om­men­da­tion of dis­bar­ment, the Board did not address the alleged vio­la­tions of Rules 1.7 (b)(4), and 1.8 (a) and (g)(2).

9 As for the alleged vio­la­tion of Rule 8.4 9 (g) con­cern­ing the threat of “crim­i­nal charges … solely to obtain an advan­tage in a civil mat­ter,” the Hear­ing Com­mit­tee believed that Bar Coun­sel sus­tained its bur­den of proof, but the Board found the ref­er­ences in Mr. Pelkey’s Octo­ber 23, 1999 let­ter to “a vio­la­tion of the Cal­i­for­nia Penal Code,” and in his Decem­ber 1999 let­ter, to “invok[ing] all gov­ern­men­tal inves­tiga­tive resources avail­able to us … [,]” to be “suf­fi­ciently vague” to dis­suade the Board from rec­om­mend­ing a vio­la­tion of Rule 8.4 (g).

10 In re Elgin, 918 A.2d 362, 373 (D.C. 2007) (quot­ing D.C. Bar R. XI, § 9 (g) (2006)) (inter­nal quo­ta­tion marks omitted).

11 In re Bai­ley, 883 A.2d 106, 115 (11 D.C. 2005) (cita­tion and inter­nal quo­ta­tion marks omit­ted).

12 In re J.E.S., 670 A.2d 1343, 1344 (D.C. 1996) (cita­tion and inter­nal quo­ta­tion marks omit­ted). Con­clu­sions of law are reviewed de novo, In re Lloyd F. Ukwu, 926 A.2d 1106, 1116 (D.C. 2007).

13 In re Fair, 780 A.2d 1106, 1110-11 (D.C. 2001).

14 Rule 8.4 of the Dis­trict of Colum­bia Rules of Pro­fes­sional Respon­si­bil­ity pro­vides in per­ti­nent part:

It is pro­fes­sional mis­con­duct for a lawyer to:

.…

(b) Com­mit a crim­i­nal act that reflects adversely on the lawyer’s hon­esty, trust­wor­thi­ness, or fit­ness as a lawyer in other respects;

© Engage in con­duct involv­ing dis­hon­esty, fraud, deceit or misrepresentation;

(d) Engage in con­duct that seri­ously inter­feres with the admin­is­tra­tion of justice .…

15 Rule 3.3 (a) pro­vides in per­ti­nent part:

(a) A lawyer shall not knowingly:

(1) Make a false state­ment of fact or law to a tri­bunal or fail to cor­rect a false state­ment of mate­r­ial fact or law pre­vi­ously made to the tri­bunal by the lawyer .…

16 He claims that Rule 8.5 (b)(1) man­dates appli­ca­tion of the applic­a­ble Cal­i­for­nia rules, not the District’s rules. Rule 8.5 (b) provides:

(b) Choice of Law. In any exer­cise of the dis­ci­pli­nary author­i­tyof this juris­dic­tion, the Rules of Pro­fes­sional Con­duct to be applied shall be as follows:

(1) For con­duct in con­nec­tion with a mat­ter pend­ing before a tri­bunal, the rules to be applied shall be the rules of the juris­dic­tion in which the tri­bunal sits, unless the rules of the tri­bunal pro­vide oth­er­wise, and

(2) for any other conduct,

(i) if the lawyer is licensed to prac­tice only in this jurisdiction, the rules to be applied shall be the rules of this juris­dic­tion, and

(ii) if the lawyer is licensed to prac­tice in this and another juris­dic­tion, the rules to be applied shall be the rules of the admit­ting juris­dic­tion in which the lawyer prin­ci­pally practices; provided, how­ever, that if par­tic­u­lar con­duct clearly has its pre­dom­i­nant effect in another juris­dic­tion in which the lawyer is licensed to prac­tice, the rules of that juris­dic­tion shall be applied to that conduct.

17 In re Slaugh­ter, 929 A.2d 433, 445 (D.C. 2007) (quot­ing In re Slat­tery, 767 A.2d 203, 207 (D.C. 2001) (“an attor­ney may be dis­ci­plined for hav­ing engaged in con­duct that con­sti­tutes a crim­i­nal act that reflects adversely on his or her fit­ness as a lawyer under Rule 8.4 (b) or engag­ing in dis­hon­est or deceit­ful con­duct, despite not hav­ing been pros­e­cuted for such actions”)).

18 In re Slat­tery, supra note 17, 767 A.2d at 212 (cit­ing D.C. Code § 22–3811 (b) [Repl. 1996; recod­i­fied at D.C. Code § 22–3211 (2001)]).

19 In re Gil, 656 A.2d 303, 305 (D.C. 1995) (quot­ing Fred­er­icks v. United States, 306 A.2d 268, 270 (D.C. 1973)).

20 In re Gil, supra note 19, 656 A.2d at 306 (quot­ing In re Kennedy, 542 A.2d 1225, 1228 (D.C. 1988)).

21 In re Slat­tery, supra note 17, 767 A.2d at 213.

22 Id. (cit­ing In re Shorter, 570 A.2d 760, 767–68 (D.C. 1990)).

23 Id. (cit­ing In re Shorter, supra note 22, 570 A.2d at 777 n.12).

24 Rule 3.3 (a)(1) states:

“A lawyer shall not know­ingly: (1) Make a false state­ment of fact or law to a tri­bunal or fail to cor­rect a false state­ment of mate­r­ial fact or law pre­vi­ously made to the tri­bunal by the lawyer, unless cor­rec­tion would require dis­clo­sure of infor­ma­tion that is pro­hib­ited by Rule 1.6 [con­cern­ing con­fi­den­tial­ity of information].”

25 Rule 3.1 spec­i­fies in per­ti­nent part:

A lawyer shall not bring or defend a pro­ceed­ing, or assert or con­tro­vert an issue therein, unless there is a basis in law and fact for doing so that is not friv­o­lous, which includes a good-faith argu­ment for an exten­sion, mod­i­fi­ca­tion, or rever­sal of existing law .…

26 Rule 3.2 (a) states: “In rep­re­sent­ing a client, a lawyer shall not delay a pro­ceed­ing when the lawyer knows or when it is obvi­ous that such action would serve solely to harass or mali­ciously injure another.”

27 Rule 4.4 (a) reads:

In rep­re­sent­ing a client, a lawyer shall not use means that have no sub­stan­tial pur­pose other than to embar­rass, delay, or bur­den a third per­son, or know­ingly use meth­ods of obtain­ing evi­dence that vio­late the legal rights of such a person.

28 Since we con­clude that Mr. Pelkey’s vio­la­tion of Rules 8.4 (b), ©, and (d) alone, and together with his vio­la­tion of Rules 3.3 (a), 3.1, 3.2 (a), and 4.4 (a), mer­its the ulti­mate sanc­tion of dis­bar­ment, we do not con­sider the other charged vio­la­tions, includ­ing Rules 1.15 (a) and (b).

29 In re Slaugh­ter, supra note 17, 929 A.2d at 446 (cit­ing In re Goffe, 641 A.2d 458, 463 (D.C. 1994) (per curiam)).

30 In re Thy­den, 877 A.2d 129, 144 (D.C. 2005) (cita­tions omitted).

31 In re Slaugh­ter, supra note 17, 929 A.2d at 446 (cit­ing In re Goffe, supra note 29, 641 A.2d at 463–64).

32 In re Elgin, supra note 10, 918 A.2d at 376 (cit­ing In re Tem­ple, 629 A.2d 1203, 1207 (D.C. 1993)).

33 See In re Cloud, 939 A.2d 653, 660 (D.C. 2007), as amended 2008 D.C. App. LEXIS 284 (D.C. March 13, 2008) (“When the evi­dence shows inten­tional or reck­less mis­ap­pro­pri­a­tion, dis­bar­ment is the appro­pri­ate sanc­tion in nearly all cases, unless there are extra­or­di­nary cir­cum­stances that jus­tify a lesser sanc­tion.”) (quot­ing In re Dixon, 763 A.2d 730, 732 (D.C. 2000) (inter­nal quo­ta­tion marks omit­ted) and cit­ing In re Adams, 579 A.2d 190, 191 (D.C. 1990) (en banc)).

34 In re Pen­ning­ton, 921 A.2d 135, 142 (D.C. 2007). We dis­cussed two cases that fell into the fla­grant dis­hon­esty cat­e­gory, In re Goffe, 641 A.2d 458 (D.C. 1994) and In re Corizzi, 803 A.2d 438 (D.C. 2002).

35 In re Gil, supra note 19, 656 A.2d at 303, 304.

36 In re Slat­tery, supra note 17, 767 A.2d at 216.

37 In Slat­tery, the Board rec­om­mended a three-year sus­pen­sion with a require­ment of fit­ness for rein­state­ment, and Bar Coun­sel advo­cated disbarment.

38 In re Corizzi, supra note 34, 803 A.2d at 443.

Evi­lEsq Admits Bruce Pelkey, Xsquire, 5.0 out of 5 based on 7 rat­ings