Washington Lawyer

Bar Counsel: Keeping Required Records: April Isn't the Cruelest Month!

From Washington Lawyer, April 2004

By Joyce E. Peters

barcounselIn 1922 T. S. Eliot penned his famous masterpiece, The Waste Land, a poem crammed with historical, literary, and symbolic references. Crafted with symbolism on multiple levels, it is a dark commentary on contemporary life. Eliot juxtaposes the despair and hollowness of a soul living in a detached, commercial world against a glimmer of hope for spiritual renewal and rebirth.

To begin his poem, however, Eliot attacks the unsuspecting month of April, asserting, “April is the cruelest month.” He berates April, saying that its cruelty arises from “breeding / Lilacs out of the dead land, mixing / Memory and desire, stirring / Dull roots with spring rain.” His observations, however, seem perverse. Most would laud April for bringing flowers from frozen ground and cleansing the world with refreshing rain. To Eliot, April is cruel because it creates a visible reminder of the anguish of man’s situation; flowers springing from barren earth reveal the despair that no longer can be ignored once the “forgetful snow” and inactivity of winter are past.

So why do we care whether April is cruel? Somehow, remembering Eliot’s view about April during the height of income tax season seems highly appropriate. April 15 can be a cruel day of reckoning, when taxpayers discover to their despair how inadequate their financial records are. Rumpled receipts and copies of checks are pulled from desk drawers; shoeboxes of paper, masquerading as files, appear in tax preparers’ offices. Late-night talk show hosts suggest buying bigger shoes to create more file space! Laborious and time-consuming efforts to find and gather critically important financial records may help substantiate tax deductions, or may be fruitless. April can indeed be a cruel month, when the discovery is made that important financial records are lost or do not exist.

An individual discovering personal financial record-keeping inadequacies may suffer by paying more taxes and then start anew in the new tax year with greater diligence in keeping better financial records. But lawyers licensed in the District of Columbia who discover they lack the required financial records concerning the handling of client funds may find themselves facing disciplinary action for violation of the D.C. Rules of Professional Conduct.

Often a lawyer’s failure to preserve required financial records signals that other ethical violations may exist. Lawyers who fail to maintain required financial records often stumble over other related disciplinary rules: the rule prohibiting commingling or misappropriation of funds (Rule 1.15(a)); the rule requiring the lawyer to notify the client or an interested third party of receipt of funds or to provide an accounting of those funds upon request (Rule 1.15(b)); the rule requiring a written statement showing disbursement of funds in contingent fee matters (Rule 1.5(c)); the rule concerning conflicting claims for client funds (Rule 1.15(c)); or even the rule concerning the proper handling of advanced unearned fees (Rule 1.15(d)).

Without adequate records, how can the lawyer accurately determine what portion of a client’s settlement is attorney’s fees and what portion must be held to pay the client and third parties? In a busy personal injury practice, funds can flood through a lawyer’s trust account as settlements occur and payments to clients and third parties are made. How can the lawyer reconstruct a transaction if it is challenged long after the event? How can the disciplinary system determine if the lawyer’s ethical misconduct is inadvertent or intentional? Even an inadvertent mistake in handling client funds caused by insufficient or inaccurate financial records can result in a disciplinary proceeding, and ethical misconduct involving misuse of entrusted funds can result in a severe disciplinary sanction.

In the District of Columbia there are two provisions governing an attorney’s duty to maintain financial records: Rule 1.15(a) and D.C. Bar Rule XI, § 19(f). The language in these two provisions is slightly different.

Rule 1.15(a) provides in part:

A lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. . . . Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
     D.C. Bar Rule XI, § 19(f), provides:
Every attorney subject to the disciplinary jurisdiction of this Court shall maintain complete records of the handling, maintenance, and disposition of all funds, securities, and other properties belonging to another person, or to a corporation, association, partnership, or other entity, at any time in the attorney’s possession, from the time of receipt to the time of final distribution, and shall preserve such records for a period of five years after final distribution of such funds, securities, or other properties or any portion thereof.
     Rule 1.15(a) pertains to client or third-party property, and is not limited to money or funds. The language in the rule would include both tangible or intangible property (for example, chattels, securities, or money) over which the lawyer obtains possession in connection with a representation. Absent a representation or absent the lawyer’s gaining possession of the property, this rule would not apply to property that the lawyer controls in some other manner, perhaps as a bailee or as an officer of an organization. The rule requires complete separation of client or third-party property from the lawyer’s property. And the requirement to maintain records continues for five years from the conclusion of the representation. This may be a different time from the date that funds are disbursed or property transferred.

In contrast, the language in D.C. Bar Rule XI, § 19(f), does not require the lawyer to be involved in a representation. It broadly covers tangible and intangible property by referring not only to funds but also “securities and other properties.” This provision explicitly states that the property may belong to a person or to a legal entity, such as a corporation. There is no requirement that the property be obtained in connection with a representation; but as in Rule 1.15(a), the lawyer must have possession of the property. Also as in Rule 1.15(a), this provision requires that the records be preserved for five years, but it is five years after the final distribution is made. If there is a representation, the conclusion of the representation is not the operative time for determining how long the records must be preserved. D.C. Bar Rule XI, § 19(f), also mandates that “complete records of the handling, maintenance, and disposition” of the property be maintained beginning from the “time of receipt.”

Thus, the language of these two provisions, while similar, is not identical. To the extent the provisions differ, some situations may involve application of both rules simultaneously, whereas others may entail application of only one, but not both, of the rules. In considering the application of these rules, the prudent lawyer will read the language carefully to determine how these rules might apply individually or together.

Although these rules describe the situations in which financial records are required to be preserved, they do not specify what kind of records must be kept.1 There is no discussion of client ledgers, canceled checks, check registers, disbursement sheets, or other standard financial accounting summaries. Both Rule 1.15(a) and D.C. Bar Rule XI, § 19(f), speak only of “complete records.” The term complete records is not defined in either rule, other than the requirement in D.C. Bar Rule XI, § 19(f), that the records must cover the period from receipt through disbursement of the property. (Presumably, if required to be retained for five years by D.C. Bar Rule XI, § 19(f), financial records that did not extend over that entire period would not be complete records.)

The comments to Rule 1.15(a) also provide no assistance in determining the kinds of financial records that should be maintained under that rule. The comments to Rule 1.15 are primarily concerned with how the lawyer should handle the property, that is, what sorts of accounts should be maintained, rather than what kind of financial records should be kept. This means that D.C. Bar members are given wide latitude in deciding what sort of financial records should be kept, and must use their judgment in deciding how to ensure that their records are complete.

D.C. lawyers, however, are not without resources for determining what sort of financial records to keep. For example, lawyers licensed both in the District of Columbia and Virginia can consult the Virginia Rules of Professional Conduct, which also contain rules concerning maintenance of financial records. Virginia Rule 1.15(c) states: “A lawyer shall . . . (3) maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them. . . .” Virginia Rule 1.15, however, also contains a separate subsection (e) titled “Record-Keeping Requirements, Required Books and Records,” which explicitly enumerates the types of computerized or manual records that Virginia lawyers are required to maintain and have available for production.2 Like the District of Columbia, Virginia requires these records to be preserved for five years.3 Although the Virginia rule is more detailed than the corresponding rule in the District of Columbia and would not directly apply to a lawyer licensed and practicing only in the District of Columbia, it provides some assistance in identifying the kinds of records that could be used to reconstruct a financial transaction.4

In addition to the guidance Virginia provides its lawyers, the District of Columbia Bar offers free and confidential assistance to lawyers licensed in the District of Columbia through its Lawyer Practice Assistance Program (LPAP). The services offered by LPAP are personalized, and may include office site visits and mentoring by experienced practitioners. LPAP can assist with issues involving financial management, office technology, calendar and docketing systems, and business planning. It can assist a lawyer in setting up effective record-keeping systems for financial and other matters.5 Setting up an appropriate record-keeping system itself is an indispensable prelude to generating complete records.

Many cases in the Office of Bar Counsel involve violations related to or involving a lawyer’s failure to maintain required financial records. Often, however, the District of Columbia Court of Appeals does not address the record-keeping failures because they are dwarfed by other, more serious ethical misconduct. There are, however, two decisions by the court that elucidate the financial record-keeping requirements and therefore are important to District of Columbia lawyers.

In In re Choroszej6 a personal injury lawyer representing a client on a contingent fee basis deposited two settlement checks in his attorney escrow account. He then paid his client but failed, as agreed, to pay the treating physician. Thereafter, erroneously believing that all of the remaining funds in his escrow account were his fees, he wrote checks on his escrow account for his personal expenses, causing the balance in the account to drop below the amount needed to pay the doctor. Meanwhile the unpaid doctor billed the clients. The clients, unable to locate the lawyer (who had moved to Boston), filed a complaint with Bar Counsel.

Bar Counsel asked the lawyer to produce his financial records showing how he had handled the settlement proceeds in the case. The lawyer promptly paid the doctor when he learned of his error, but he was unable to locate his records concerning the settlement. As a result, Bar Counsel filed disciplinary charges. Ultimately, the Board on Professional Responsibility found that the lawyer had engaged in misappropriation of client funds, commingling, and failure to maintain complete records and recommended a six-month suspension.7 The court accepted the board’s findings of fact and its conclusions (except for the commingling charge)8 and adopted the board’s recommended sanction.

The Choroszej case involved a number of mitigating factors.9 Although the misappropriation finding was the more serious ethical violation, the court expressly adopted the board’s analysis of the lawyer’s failure to maintain complete records:

Disciplinary Rule 9-103(B)(3) requires that an attorney maintain complete records of all client funds in his possession. Here, Respondent was unable to produce a ledger of the checks he wrote on the client trust account or bank statements and accounting records showing what was paid to or received from his clients. Respondent claims that his poor record-keeping was caused by his move from the District of Columbia to Boston. As the Hearing Committee correctly noted, “[a]lthough this fact may explain, it does not excuse [R]espondent’s failure to keep records.” Hrg.Com.Rpt. at 19. Accordingly, we concur in the Hearing Committee’s conclusion that Respondent failed to maintain documentation on his clients’ fund and thereby violated Disciplinary Rule 9-103(B)(3). 10
     Moreover, the court agreed with the board that if the lawyer had paid closer attention to his records, his brush with the disciplinary system might have been avoided. The court again quoted the board, which had stated: “Through sloppy bookkeeping, respondent was not alerted to the fact that he never paid [the doctor’s bill]. From this inadvertent and negligent occurrence, a series of violations ensued.”11

More recently, in In re Clower12 the court again considered the issue of failure of an attorney to maintain complete financial records. In Clower the attorney had been retained to represent a client in a personal injury action and the client had executed an authorization and assignment agreement with a physical therapist entitling the therapist to a portion of any recovery obtained on the client’s behalf. When the parties reached a settlement two years later, the attorney deposited the $100,000 settlement check in his escrow account and then, in accordance with the client’s instructions, paid a number of creditors (including some not on the settlement and disbursement sheet) from the proceeds of the settlement. The lawyer, however, failed to pay the physical therapist.13 When the therapist contacted the attorney, he was advised that the case had settled, all proceeds had been disbursed, and no funds were left to pay his bill. The therapist then filed a complaint with Bar Counsel.

Bar Counsel requested records demonstrating the attorney’s authority for making the disbursements from the settlement proceeds to the individuals not listed on the settlement and disbursement sheet. The attorney produced a letter from his client confirming that he had made the payments to the various creditors with her knowledge and consent. The attorney, however, advised that he had no written records prepared contemporaneously with the payments that evidenced his client’s approval or authorization for the disbursements of her funds from his escrow account.

The board concluded that the attorney had violated both Rule 1.15(a) and D.C. Bar R. XI, § 19(f), by failing to keep complete records of his client’s settlement funds. The board noted that the attorney’s records were incomplete because they were “devoid of any written explanation as to why he was distributing his client’s funds to various third parties” whose names did not appear on the settlement and disbursement sheet approved by the client.14 The board further elaborated on its interpretation of the requirement for complete records, stating:

The purpose of maintaining “complete records” is so that the documentary record itself tells the full story of how the attorney handled client or third-party funds and whether the attorney complied with his fiduciary obligation that client or third-party funds not be misappropriated or commingled. Financial records are complete only when documents sufficient to demonstrate an attorney’s compliance with his ethical duties are maintained. The reason for requiring complete records is so that any audit of the attorney’s handling of client funds by Bar Counsel can be completed even if the attorney or the client, or both, are not available.15
     The court agreed with the board’s reasoning and found both record-keeping violations, as well as a violation of Rule 1.15(b) for failing to notify and promptly pay the third-party provider. The court rejected a claim by the attorney that the board had adopted “a novel interpretation of a vague requirement . . . and that it [was] unfair to hold him accountable under a more rigorous record keeping standard than was in place when he disbursed [the] funds.”16 The attorney pointed out that he did maintain records showing each disbursement and identifying the payee.

The court disagreed that these partial records were complete records and concluded that the board’s analysis involved only common sense and was not novel. The court pointed to its earlier decisions in In re Choroszej and In re Jones,17 both of which involved violations of DR 1-109(B)(3)—the predecessor to the current Rule 1.15(a), and cited with approval the Model Rule on Financial Recordkeeping adopted by the American Bar Association in 1993.18 The court stated that the model rule “lists in detail the records a lawyer should keep.”19 The court found:

[T]he gaps in respondent’s records were blatant: his settlement and disbursement statement purported to list the persons entitled to shares of the settlement proceeds, but he made payments to persons who were not listed and failed to pay one person who was listed. Nothing in respondent’s records explained these obvious discrepancies.
     The court then imposed a public censure, adopting the recommendation of the board and noting that the board had found the respondent’s failure to notify and promptly deliver funds in violation of Rule 1.15(b) to be more serious than the record-keeping violations. The record-keeping violations, however, had certainly contributed to the other violations that occurred.

What these cases illustrate is that lawyers handling client funds need to be scrupulous in keeping complete financial records of disbursements and other financial transactions in all matters. The records should speak for themselves without the need for affidavits or other subsequent explanation to justify the lawyer’s actions.

It is important for a lawyer to keep complete financial records, not just to satisfy tax accounting needs in April, but all of the time. Although most large law firms have detailed record-keeping systems in place, small firms and solo practitioners who may not regularly handle client funds, or even lawyers taking that one case for a friend without thinking about the requirement to preserve complete records, may be at risk. Using the services of LPAP and consulting the American Bar Association Model Rule on Financial Recordkeeping and other ethical sources can help a lawyer understand what kinds of financial records should be maintained. Instead of a wasteland of shoeboxes, yellow sticky notes, shopping bags and drawers full of scattered financial documents, these resources will enable the prudent D.C. lawyer to ensure that complete records are being kept as required by the ethical rules.

Notes

  1. This is not unlike the language concerning fee agreements in Rule 1.5, which requires the lawyer to provide “a writing” to any new client or any client whose case is handled on a contingent fee basis. What must be in that writing is not defined. This means that any sort of writing may meet the requirement: a 10-page typed fee agreement, a short written statement outlining the amount of the fee, or possibly even an annotation on the back of a business card. The nature of the case may dictate what sort of a writing is used or is needed; the rule does not. But the more cursory the writing is, the greater is the likelihood of a fee dispute, especially if the client does not understand the lawyer’s fees or the writing itself does not elucidate the agreement.
  2. Subsection (e) differentiates between the books and records required to document funds held in an escrow account from the records required for funds or property held as a fiduciary. For escrow accounts, Virginia Rule 1.15(e)(1) identifies the following required books and records: “(i) a cash receipts journal or journals listing all funds received, the sources of the receipts and the date of receipts. . . ; (ii) a cash disbursements journal . . . ; (iii) subsidiary ledger. . . ; [and] (iv) reconciliations and supporting records . . . .”
  3. Virginia Rule 1.15(e)(1)(v) provides: “[T]he records required under this paragraph shall be preserved for at least five full calendar years following the termination of the fiduciary relationship.”
  4. As in the guidance contained in Virginia Rule 1.15, the Minnesota Lawyers Professional Responsibility Board has issued Opinion No. 9, titled “Maintenance of Books and Records,” which contains detailed guidance on the financial records a lawyer should preserve. This opinion has been amended six times since it was first issued in 1976 and can be found at www.courts.state. mn.us/lprb/opinions.html.
  5. For more information about the Practice Management Advisory Service (formerly LPAP), consult the D.C. Bar web site at www.dcbar.org/pmas.
  6. 624 A.2d 434 (D.C. 1992).
  7. Id. at 435.
  8. The charges in this case were initiated under the former Code of Professional Responsibility, so the board found violations of DR 9-103(A) (misappropriation), 9-103(A)(2) (commingling), and 9-103(b)(3) (failure to maintain complete records). The court concluded it did not need to consider the commingling charge and based its sanction decision on the other two violations. The case includes an interesting concurring opinion by Chief Judge (then Associate Judge) Wagner concerning her views of the reasons for and nature of the ethical prohibition against commingling. Id. at 437–40.
  9. In mitigation the court pointed to the lawyer’s full cooperation with Bar Counsel, the lack of any financial loss to his client, the fact that only a single incident rather than a pattern of misconduct had occurred, and the circumstances surrounding the lawyer’s solo practice and his lack of office staff at the time of the misconduct.
  10. 624 A.2d at 436.
  11. Id. at 437.
  12. 831 A.2d 1030 (D.C. 2003).
  13. The attorney had prepared a settlement and disbursement sheet that included funds for the therapist, although there is an unresolved factual dispute about how much the therapist was owed. At his disabled client’s request and as an accommodation to her, the attorney continued to hold the client’s portion of the settlement funds in his escrow account. Then, without making any payment to the therapist, the attorney drew a series of checks to three payees not on the settlement sheet and to the client, ultimately exhausting the settlement funds without paying the therapist. The board found that the attorney had never checked his records before making these final distributions to make sure that he had made all of the payments included on the settlement and disbursement sheet.
  14. In re Clower, 831 A.2d at 1034.
  15. Id.
  16. Id.
  17. 521 A.2d 1119 (D.C. 1986).
  18. The Model Rule on Financial Recordkeeping can be found on the ABA web site at www.abanet.org/cpr/clientpro/fpreface.html.
  19. Clower, 831 A.2d at 1035.

Disciplinary Actions Taken by the Board on Professional Responsibility
IN RE RICHARD P. BROWN. Bar No. 414983. December 10, 2003. The board recommends that the court suspend Brown for one year, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Brown pleaded guilty to a securities fraud charge under a New Jersey statute. The board found that Brown was convicted of a serious crime and violated Rules 8.4(b) and 8.4(c).

IN RE CHARLES G. CANTY. Bar No. 443186. December 31, 2003. The board reprimanded Canty. The board found that Canty failed to hold his client’s entrusted trusts separate from his own property (commingling) and failed to maintain complete records of entrusted funds in his IOLTA account. The board found that Canty violated Rule 1.15(a) and D.C. Bar R. XI, § 19(f).

IN RE J. ANDREW CHOPIVSKY. Bar No. 349415. January 28, 2004. The board recommends that the court accept Chopivsky’s consent to disbarment.

IN RE CHARLES E. MCCLAIN SR. Bar No. 439941. December 31, 2003. In a reciprocal matter from Maryland, the board recommends that the court impose nonidentical discipline and suspend McClain for six months, nunc pro tunc to March 26, 2003, the effective date of the Maryland suspension. In recommending an increased sanction, the board concluded that the Maryland record established misappropriation. The Maryland Court of Appeals suspended McClain for 30 days for violating Maryland Rule 1.15, by failing to keep safe the property of a third party, and Maryland Rule 16-606, by failing to maintain a properly designated attorney trust account.

IN RE DAVID V. PEERY. Bar No. 442089. January 30, 2004. The board recommends that the court suspend Peery for one year, with the period of suspension to run nunc pro tunc from June 18, 2001, provided he file his section 14(g) affidavit with the court within 10 days of the issuance of the board’s report and recommendation. The board concluded that Peery violated Rule 8.4(b), based on his conviction of five counts of misdemeanor theft in violation of D.C. Code §§ 22-3211 and 22-3212(b) for misuse of a law firm charge card, and Rule 8.4(c), based on his pattern of misuse of the firm’s charge card and his false statement to the law firm’s office manager concerning his use of the card.

IN RE BILLY L. PONDS. Bar No. 379883. January 22, 2004. The board recommends that the court impose a 60-day suspension on Ponds, stay execution of the suspension in favor of unsupervised probation for six months, and require Ponds to file, within the six-month probationary period and as a condition of vacating the suspension, proof of completion of a continuing legal education course on legal ethics or criminal practice covering conflicts of interest. The board found that Ponds had violated Maryland Rules 1.7(b)(4) (conflict of interest) and 1.16(a)(1) (failure to withdraw when necessary to avoid violation of the rules), made applicable by D.C. Rule 8.5(b)(1) (choice of law), while representing a client in a criminal proceeding before the U.S. District Court of Maryland.

IN RE KENNETH H. SHEPHERD. Bar No. 68262. December 10, 2003. The board recommends that the court publicly censure Shepherd and order Shepherd to take a course in professional responsibility. Shepherd, who was retained to represent a client in a personal injury matter, failed to withdraw properly from his client’s matter, failed to advise his client and gain her consent to the proposed transfer of her case to successor counsel, and failed to take reasonable steps to ensure that successor counsel entered his appearance to handle his client’s case, which was dismissed when no lawyer appeared on his client’s behalf at the initial conference. The board found that Shepherd violated Rules 1.3(a), 1.3(c), 1.4(a), 1.16(d), and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals
IN RE PHYLLIS M. AIN. Bar No. 312199. December 4, 2003. In a reciprocal matter from Colorado, the court disbarred Ain. The Supreme Court of Colorado disbarred Ain and ordered her to return client files and to pay restitution based on four separate violations: abandonment of clients, misappropriation of funds, commingling of funds, and disregard of court orders.

IN RE DAVID R. KING. Bar No. 227470. December 18, 2003. In a reciprocal matter from Utah, the court imposed functionally equivalent reciprocal discipline and publicly censured King. The Third Judicial District Court in and for Salt Lake County, Utah, publicly reprimanded King pursuant to a Discipline by Consent and Settlement Agreement. King violated Rules 1.2(a), 1.4(a), 1.4(b), and 8.4(a) of the Utah Rules of Professional Conduct by, inter alia, failing to abide by his client’s decisions, consult with his client, respond to his client’s requests for information, and keep his client reasonably informed.

IN RE VAN S. POWERS. Bar No. 194258. December 18, 2003. In a reciprocal matter from Maryland, the court suspended Powers indefinitely, with the right to reapply for reinstatement after five years or upon reinstatement in Maryland, whichever occurs first. The Court of Appeals of Maryland suspended Powers, with conditions of reinstatement, based on a Joint Petition for Indefinite Suspension by Consent. Complaints pending against Powers involved lack of competence, diligence, and communication; failure to maintain an interest-bearing escrow account; failure to maintain complete and accurate records of client funds; failure to account for client funds; conflict of interest; and conduct prejudicial to the administration of justice, in violation of Maryland Rules of Professional Conduct 1.1, 1.3, 1.4, 1.7(b), 1.15, and 8.4(d), as well as Maryland Rules 16-604, 16-606, 16-607, and 16-609 and Business Occupations and Professions Article sections 10-303, 10-304, and 10-306 of the Annotated Code of Maryland.

IN RE DONALD L. SCHLEMMER. Bar No. 414582. January 8, 2004. The court remanded this matter to the board for reconsideration on the issue of sanction. The board had previously recommended that the court publicly censure Schlemmer for violating Rules 1.3(a) and 1.4(a) by failing to file an appeal and failing to advise his client that an appeal had not been filed in an immigration matter.

IN RE BENJAMIN M. SOTO. Bar No. 453728. January 22, 2004. In a reciprocal matter from Maryland, the court publicly censured Soto. The Court of Appeals of Maryland publicly reprimanded Soto for the unauthorized practice of law in real estate matters, in violation of Rule 5.5(a) of the Maryland Rules of Professional Conduct. Although the Maryland order specified that the reprimand not be published in the Maryland Reports, Maryland Reporter, or Atlantic Reporter, Second Series, the court adopted the unchallenged recommendations of the board and issued the public censure without limitation on its publication.

IN RE CATHERINE THOMAS-PINKNEY. Bar No. 311480. January 15, 2004. The court disbarred Thomas-Pinkney. Thomas-Pinkney engaged in reckless misappropriation of funds in two different client matters, as well as six other ethical violations, while serving as counsel to six different clients in personal injury cases, including commingling of funds; failure to provide written agreements in cases in which she represented clients on a contingency basis; failure to provide settlement or disbursement sheets; failure to notify a third party of the receipt of funds in which the third party had an interest; failure to pay a third party promptly; and failure to maintain complete records of funds held for clients and third parties.

IN RE RANDY A. WEISS. Bar No. 359018. December 11, 2003. The court suspended Weiss for three years, with one year suspended in favor of probation for two years or until his therapist concludes and advises Bar Counsel that therapy is no longer necessary. As a condition of probation, the court directed the quarterly submission of certificates from Weiss’s treating therapist confirming Weiss’s continued good-faith participation in therapy. After Weiss illegally took funds from his law firm, he self-reported his actions to both his firm and Bar Counsel, and ultimately repaid the firm the entire amount that he had improperly obtained. In a dissent concerning the sanction recommendation, one judge recommended suspending the entire three-year suspension in favor of probation conditioned on the continuation of therapy until Weiss’s therapist advises that therapy is no longer required.

IN RE JONATHAN T. ZACKEY. Bar No. 943134. December 18, 2003. In a reciprocal matter from Washington State, the court disbarred Zackey, with the requirement upon reinstatement that he demonstrate that he has made restitution as
ordered by the Supreme Court of Washington. The Supreme Court of Washington disbarred Zackey for multiple acts of misappropriation and other violations of Washington’s disciplinary rules and ordered him to pay restitution to the clients he defrauded.

Informal Admonitions Issued by the Office of Bar Counsel
IN RE DONATA EDWARDS. Bar No. 327205. November 25, 2003. Bar Counsel issued Edwards an informal admonition for violating Rule 1.5(b) by failing to provide a client a writing setting forth the basis or rate of her legal fees.

IN RE BILLIE P. GARDE. Bar No. 454465. October 30, 2003. Bar Counsel issued Garde an informal admonition for violating Rules 1.7(b)(1) and/or 1.10 and 1.7(c) when she represented two current clients whose interests were adverse to one another without obtaining their consent, even though the matter in which Garde represented the second client was unrelated to the first client’s matter.

IN RE MICHAEL T. MURTAUGH. Bar No. 389933. December 1, 2003. Bar Counsel issued Murtaugh an informal admonition for violating Rule 8.4(b) and D.C. Bar R. XI, § 10(a), by failing to report his arrests and convictions for alcohol-related driv-ing offenses.

IN RE HAROLD B. PEEK. Bar No. 174094. November 25, 2003. Bar Counsel issued Peek an informal admonition for violating Rule 1.5(b) by failing to provide a client a writing setting forth the basis or rate of his legal fees.

IN RE ONKAR N. SHARMA. Bar No. 217810. November 25, 2003. Bar Counsel issued Sharma an informal admonition for violating Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), and 1.3(c) by failing to represent his client competently, zealously, and diligently in a real estate transaction and failing to act with reasonable promptness.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.