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In re Anderson8/2/2001
before the settlement of the claim with their contacts - i.e., the relative absence of contacts - after the settlement. Before he was told by Phillips & Green two months after the settlement that the medical bill had been "discharged," Calligan left messages on Anderson's answering machine in reaction to calls he was still receiving from the collection agency, but (i) he could not recall whether he said anything more in those messages than "please call me," and (ii) he was certain that after the settlement he and Anderson had never spoken about the unpaid bill. There is thus no clear and convincing evidence contradicting Anderson's testimony that he did not learn that he was mistaken in believing he had paid the bill until he contacted Phillips & Green about an unrelated matter over a year later.
Bar Counsel argues, nonetheless, that the Hearing Committee made a general finding that Anderson's explanation was not credible, and that the Board failed to give this determination the proper deference owed to the finder of fact. We take this argument seriously because of the importance our disciplinary system accords to the Hearing Committee as the first-level adjudicator and trier of the facts, see Micheel, 610 A.2d at 234; hence any indication that the Board substituted its view of the credibility of a witness for the Committee's would endanger that basic allocation of decisionmaking responsibility. For the following reasons, however, we agree with the Board that the Hearing Committee's finding as to credibility does not warrant the normal deference in this case.
First, the Committee explained that Anderson's "self-serving testimony on inadvertence and regret are not credible given the time taken to pay the medical providers and the failure to respond to Mr. Calligan's payment status inquiries." We set aside the adjective ("self-serving") because testimony by a respondent in explanation of his conduct is almost by definition self-serving. Moreover, as we have seen, the record does not support the finding that respondent ignored post-settlement inquiries by Calligan, and if nothing alerted him to the fact that his belief that he had paid the bill was mistaken, then "the time taken to pay the medical providers" has no ultimate significance. Second, the Committee's credibility assessment gives no indication that it was based on respondent's demeanor in testifying and responding to questions. See In re Temple, 629 A.2d 1203, 1208-09 (D.C. 1993) ("The factfinder who hears the evidence and sees the witnesses is in a better position to make [credibility] determinations, having the benefit of those critical first-hand observations of the witness' demeanor or manner of testifying which are so important to assessing credibility."). Rather, besides resting on a mistaken understanding as to the reminders Anderson had been given, the Committee's disbelief of his explanation appears to have derived significantly from its finding that he had "fail to conform bookkeeping practices to accepted norms (indeed, required protocols)." That is, the Committee found too convenient respondent's explanation of "honest, good-faith lapse in memory," because - it stated - " t is easy . . . to imagine losing track of payment obligations when one uses no written or computer-based method of bookkeeping." It was this "willful failure" to maintain any accounting system that, in the Committee's view, "precludes [respondent's] simple negligence defense." The Board correctly recognized this analysis to be in the nature of a legal conclusion rather than a finding of fact, and that our decisions do not sustain it without additional circumstances demonstrating recklessness.
Because of the disagreement between the Boa
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