Washington Lawyer

Bar Counsel: An Abbreviated Process

From Washington Lawyer, April 2011

By Joe Perry and Bill Ross

barcounselOur bar is unique because a majority of our members are also admitted to practice in other jurisdictions. However, like every other jurisdiction in the United States, the District of Columbia imposes reciprocal discipline based upon a foreign jurisdiction’s order of discipline against an attorney who is also licensed here.

The reciprocal discipline process in the District of Columbia is set out in D.C. Bar Rule XI, § 11. Preliminarily, D.C. Bar Rule XI, § 11(b) requires that attorneys inform the Office of Bar Counsel when they have been subjected to foreign discipline. D.C. Bar Rule XI, § 11(c) states that reciprocal discipline “shall be imposed” unless: (1) the foreign proceeding deprived the attorney of due process; (2) there was an infirmity of proof in the foreign proceeding; (3) the imposition of the same discipline would result in a grave injustice; (4) the misconduct found warrants significantly different discipline in the District of Columbia; or (5) the misconduct elsewhere does not constitute misconduct in the District of Columbia. Barring a finding that one of these exceptions applies, “a final determination by another disciplining court that an attorney has been guilty of professional misconduct shall conclusively establish the misconduct for the purpose of a reciprocal proceeding in [the District of Columbia Court of Appeals].”

Although most attorneys seem generally aware that such a system exists, years of experience bringing reciprocal matters have demonstrated to this office that there are several misconceptions about reciprocal discipline.

First, reciprocal proceedings do not provide a forum to relitigate the foreign jurisdiction’s disciplinary matter.[1] Under Rule XI, § 11(c) the burden is on the attorney to demonstrate by clear and convincing evidence that one of the enumerated exceptions to reciprocal discipline apply, and the Court of Appeals generally does not pass on substantive arguments already presented and adjudicated in another jurisdiction. The fact that reciprocal proceedings do not represent a second bite of the apple may seem readily apparent to most, but the curious might consider setting aside a lazy Saturday afternoon to review some of the opinions from contested reciprocal cases and see just how often the court restates this principle.[2]

Second, many attorneys might be surprised by how narrowly construed the exceptions are in section 11(c). Under section 11(c)(1), for instance, an attorney can oppose the imposition of reciprocal discipline by establishing that “[t]he procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process[.]” Although a requirement that the attorney receive notice of the foreign proceedings may seem obvious, what may be less obvious is if that attorney waives his right to an evidentiary hearing in the foreign jurisdiction, he also waives his right to any hearing here.[3] Further, where an attorney has received notice of the disciplinary proceedings against him, reciprocal discipline can be imposed based on a default judgment.[4]

The case law suggests that section 11(c)(2) and section 11(c)(3) are also narrowly construed.[5] For example, although Bar Counsel must prove ethical violations by clear and convincing evidence in original proceedings, findings made by a preponderance of evidence in a foreign jurisdiction do not constitute an “infirmity of proof” barring the imposition of reciprocal discipline.[6] Sections 11(c)(4) and (c)(5), which address situations where the misconduct established warrants substantially different discipline in the District of Columbia and situations where the misconduct elsewhere does not constitute misconduct here, respectively, also rarely serve to prevent the imposition of reciprocal discipline.

Even those who chose to resign while under investigation in a foreign jurisdiction—prior to any formal findings having been made—are still subject to reciprocal discipline in the District of Columbia. Although the Bar Rules specifically prohibit a resignation when charges are pending in an original proceeding,[7] the court consistently has imposed a five-year suspension with the requirement that the attorney demonstrate fitness prior to reinstatement as functionally equivalent discipline where the attorney has submitted a resignation while under investigation in a foreign jurisdiction.[8]

In light of the above, D.C. attorneys might justifiably feel that identical reciprocal discipline is all but inevitable; indeed, the court consistently has reaffirmed that there is a strong presumption in favor of imposing reciprocal discipline.[9] However, a streamlined reciprocal discipline system allows the public to learn of an attorney’s malfeasance sooner and also frees up the scarce resources of the disciplinary system’s volunteers for original matters. To facilitate such efficiency, prompt reporting of foreign discipline is encouraged. Bar Counsel also periodically cross–references D.C. membership rolls with reports from the American Bar Association National Lawyer Regulatory Data Bank and initiates reciprocal proceedings in matters that have not been self–reported. All too often this results in reciprocal proceedings long after the foreign discipline has commenced (or even after it is terminated), and precludes an opportunity to have all discipline run concurrently.[10]

So, as uncomfortable as it may be, self–reporting benefits not only the system, but the attorney as well.

Bill Ross is assistant Bar Counsel; Joe Perry is a senior staff attorney in the Office of Bar Counsel.

Notes
[1] See, e.g., In re Zdravkovich, 831 A.2d 964, 969 (D.C. 2003).
[2] In the alternative, you could take our word for it and spend your free time going for a bike ride, watching a movie, or spending time with your loved ones.
[3] See, e.g., In re Richardson, 692 A.2d 427, 434 (D.C. 1997).
[4] See, e.g., In re Shieh, 738 A.2d 814, 816–18 (D.C. 1999).
[5] Section 11(c)(2) provides that reciprocal discipline may not be imposed where
[t]here “was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court, consistently with its duty, accept as final the conclusion on that subject.
Section 11(c)(3) provides that identical reciprocal discipline will not be imposed where to do so would constitute “a grave injustice.”
[6] See, In re Barrett, 966 A.2d 862, 863 n.2 (D.C. 2009) (citing In re Benjamin, 698 A.2d 434, 440 (D.C. 1997)).
[7] D.C. Bar R. II, § 7.
[8] See, e.g., In re Weaver, 954 A.2d 425 (D.C. 2008); In re Winston, 917 A.2d 629 (D.C. 2007); In re Brown, 797 A.2d 1232 (D.C. 2002).  
[9] See, e.g., In re Robbins, 911 A.2d 1227, 1228 (D.C. 2006) (citing In re Zilberberg, 612 A.2d 832 (D.C. 1992)).
[10] The presumption is that the discipline here will run concurrently with the discipline in the foreign jurisdiction, but only if the attorney promptly notifies Bar Counsel of the foreign discipline and files the affidavit required of suspended attorneys as well as an affidavit demonstrating that the attorney has not practiced law here since the effective date of the foreign discipline. See In re Goldberg, 460 A.2d 982 (D.C. 1983).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
In re Karl W. Carter Jr. Bar No. 113449. January 20, 2011. The D.C. Court of Appeals suspended Carter for 18 months. As a condition of reinstatement at the conclusion of his suspension, Carter first must establish his fitness to practice law pursuant to D.C. Bar Rule XI, § 16; provide proof that he has paid Messrs. Blount, Briscoe, and Morgan their agreed settlement payments or arbitral awards; and cooperate with Bar Counsel’s requests for information in its ongoing investigations. With regards to the first employment matter, Carter failed to represent the client with diligence and zeal, respond with reasonable promptness, and return unearned fees. He also engaged in conduct involving dishonesty. In the second and third employment matters, Carter failed to provide competent representation, represent the client with commensurate skill/care, represent the client with diligence and zeal, respond with reasonable promptness, explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, and return unearned legal fees. He also seriously interfered with the administration of justice. Additionally, with regards to the second employment matter, Carter failed to comply with reasonable requests for information. Finally, with regards to two other unrelated matters, Carter failed to respond to Bar Counsel, seriously interfered with the administration of justice, and failed to comply with a board order and an order of the D.C. Court of Appeals regarding a subpoena duces tecum. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), 1.4(b), 1.16(d), 8.4(c) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re Idus J. Daniel Jr. Bar No. 405077. January 13, 2011. The D.C. Court of Appeals suspended Daniel for three years with fitness. Daniel commingled personal funds with entrusted funds in one of his attorney trust accounts, dishonestly used his attorney trust accounts to conceal personal property from the Internal Revenue Service (IRS), and dishonestly stated to the IRS that he had no business or personal bank accounts at a time that his attorney trust accounts contained both business and personal funds. Rules 1.15(a) and 8.4(c).

In re Willie N. Hewett. Bar No. 372772. January 13, 2011. The D.C. Court of Appeals suspended Hewett for six months, stayed pending a six-month probationary period during which Hewett must complete six hours of continuing legal education credits on probate procedures. In addition, Hewett must reimburse the estate of his ward for the interest accrued while he was in possession of the misappropriated funds, with interest to be calculated at the legal rate of 6 percent per annum pursuant to D.C. Code § 28-3302(a) (2001). Hewett engaged in intentional misappropriation based on a finding that while he was serving as a court-appointed conservator of a ward of the court, Hewett took approximately $2,000 in fees without prior approval of the probate court. However, he believed that (a) he was benefiting his ward by insuring that the ward’s funds were reduced by $750 to a level below the Medicaid eligibility threshold, and (b) he legitimately was entitled to the legal fees he withdrew from his ward’s account at the same time he sought the probate court’s approval. Unaware that the probate court subsequently denied his request for approval of the fees, Hewett treated the funds as his own for approximately a year and a half. In December 2002, upon belatedly discovering nearly 15 months after the decision that the probate court had disapproved his request for the fees, Hewett promptly repaid the amounts he had taken from the ward. Rules 1.1(a), 1.1(b), and 8.4(d).

In re Andrew J. Kline. Bar No. 358547. January 13, 2011. The D.C. Court of Appeals suspended Kline for three years. Kline negligently misappropriated and commingled entrusted funds and “committed a significant number of serious ethical violations” representing a client in a litigation matter. Specifically, Kline failed to make crucial litigation filings, and, as a result, a default judgment was entered against his client on his client’s $7,500 contract claim. Without telling his client about the default judgment, Kline negotiated terms with the adverse parties under which his client was to pay $50,000 in settlement of a counterclaim filed against his client. Kline did not bring these terms to his client’s attention. Instead, Kline submitted a purported draft agreement that called for dismissal of his client’s $7,500 contract claim but required no monetary payment from his client. When even those terms were not acceptable to his client, Kline forged his client’s signature on a settlement agreement containing the terms he had negotiated and presented the forged agreement to the opposing parties as a valid settlement agreement. Kline paid the $50,000 to the adverse parties in settlement of the counterclaim filed against his clients, using $4,334.53 in negligently misappropriated funds. Rules 1.1(a), 1.2(a), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.3(c), 1.4(a), 1.4(b), 1.4(c), 8.4(b), 8.4(c) and D.C. Bar R. XI, § 19(f).

In re Terri Y. Lea. Bar No. 422762. January 20, 2011. The D.C. Court of Appeals suspended Lea for 180 days in addition and consecutive to the period of suspension imposed in In re Lea, 969 A.2d 881 (D.C. 2009). Lea violated rules pertaining to unauthorized practice of law; made false or misleading communications about the lawyer or her services; used letterhead or other professional designation in violation of Rule 7.1; failed to respond to Bar Counsel’s lawful demand for information; participated in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaged in conduct that seriously interferes with the administration of justice. In addition, Lea failed to comply with an order of the board compelling a response to Bar Counsel inquiries. Specifically, while administratively suspended for nonpayment of dues, Lea represented a claimant in an automobile accident. Rules 5.5(a), 7.1, 7.5, 8.1(b), 8.4(c) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re Ralph T. Mabry Jr. Bar No. 955633. January 27, 2011. The D.C. Court of Appeals disbarred Mabry. Additionally, for purposes of reinstatement, Mabry must demonstrate that he has reimbursed the estate, its beneficiaries, and/or the Clients’ Security Fund $12,033.66, plus accrued interest. While serving as the personal representative in an estate matter, Mabry failed to provide competent representation to his client; failed to represent his client with diligence, zeal, and reasonable promptness; intentionally failed to seek the lawful objectives of his client and intentionally prejudiced or damaged his client; engaged in intentional misappropriation of funds from the estate; failed to deliver funds and records to which the client and/or third persons were entitled; failed to protect his client’s interests after he was removed by the court as the personal representative; engaged in conduct involving dishonesty; and engaged in conduct that seriously interfered with the administration of justice. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.3(c), 1.15(a), 1.15(b), 1.16(d), 8.4(c), and 8.4(d).

In re Lucille Saundra White. Bar No. 463929. January 20, 2011. The D.C. Court of Appeals disbarred White based on two matters that were consolidated. In the first matter, White accepted employment on behalf of a client in a matter on which White had been personally and substantially involved as an employee of the District of Columbia Office of Human Rights. Rules 1.11 and 8.4(d). In the second matter, White submitted fabricated evidence and false testimony in a matter before the Council of the District of Columbia, as well as presented false evidence and made misrepresentations that pervaded her defense in the disciplinary hearing. Rules 3.4(a), 3.4(b), 8.1(a), 8.4(b), 8.4(c), and 8.4(d).

Reciprocal Matters
In re Lorin Bleecker. Bar No. 96685. January 20, 2011. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Bleecker based upon findings in Maryland that Bleecker neglected a client’s matter, precluding the client from acquiring recompense for severe injuries sustained in an automobile accident by failing to file suit before the statute of limitations had lapsed. Thereafter, Bleecker concealed his failures from his client. After the statute of limitations lapsed, and without his client’s knowledge or consent, Bleecker filed a complaint averring an incorrect accident date and sent a demand letter indicating a settlement sum. After Bleecker’s client learned from a third party that her case had been dismissed, he failed to advise the client to seek advice of independent counsel regarding potential claims against him. Bleecker also failed to correct a prior false statement (the date of an accident) to the Maryland Circuit Court, causing an extensive waste of judicial time and resources.

In re Bruce A. Enstad. Bar No. 327874. January 13, 2011. In a reciprocal matter from Colorado, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Enstad for 60 days, stayed pending successful completion of the probationary period imposed by Colorado.

In re Daniel M. Keil. Bar No. 215467. January 13, 2011. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Keil for 15 days, nunc pro tunc, to November 15, 2010.

In re Stephen D. Landfield. Bar No. 388146. January 13, 2011. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Landfield for six months with fitness.

In re Xavier J. Vega. Bar No. 498702. January 13, 2011. In a reciprocal matter from California, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Vega for one year, stayed pending Vega’s successful completion of the probationary period imposed by California.

In re Carmen M. Vozzella. Bar No. 431950. January 13, 2011. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Vozzella for one year with fitness.

Interim Suspensions Issued by the District of Columbia Court of Appeals

In re David E. Fox. Bar No. 165258. January 13, 2011. Fox was suspended on an interim basis based upon discipline imposed in Maryland.

In re Mark L. Lezell. Bar No. 175000. January 11, 2011. Lezell was suspended on an interim basis based upon his failure to respond to a board order directing a response to Bar Counsel’s investigation of matters involving allegations of serious misconduct.

In re Sol Z. Rosen. Bar No. 10967. January 13, 2011. Rosen was suspended on an interim basis based upon discipline imposed in Virginia.

In re Michael J. Smith. Bar No. 432304. January 7, 2011. Smith was suspended on an interim basis based upon discipline imposed in Indiana.

Informal Admonitions Issued by the Office of Bar Counsel

In re Stephanie Y. Bradley. Bar No. 288910. January 4, 2011. Bar Counsel issued Bradley an informal admonition for failing to provide a client with a retainer agreement stating the basis or rate of the fee or the scope of the representation, and for failing to communicate about the limited scope of the representation while representing a client in a probate matter. Rules 1.5(b) and 1.4(b).

In re Kelly L. Burchell. Bar No. 495116. January 4, 2011. Bar Counsel issued Burchell an informal admonition for failing to provide competent representation, serve a client with skill and care, represent a client zealously and diligently, keep a client reasonably informed, and explain a matter to the extent reasonably necessary to allow the client to make informed decisions. Specifically, Burchell failed to communicate with his client and take action to preserve his client’s rights after an adverse decision was rendered by an arbitrator. Rules 1.1(a), 1.1(b), 1.3(a), 1.4(a), and 1.4(b).

In re Patrick Merkle. Bar No. 375865. January 4, 2011. Bar Counsel issued Merkle an informal admonition for violating the basic conflicts provisions and failing to withdraw as a result of the conflict. Specifically, Merkle was suing a client in the Landlord and Tenant Branch of the Superior Court of the District of Columbia at the same time he was representing the client. Rules 1.7(b)(4), 1.8(a), and 1.16(a).

In re Daniel R. White. Bar No. 333274. January 4, 2011. Bar Counsel issued White an informal admonition. While involved in a civil dispute over payment for work performed on his house, White improperly held himself out as a lawyer and implied he was licensed to practice law in the District of Columbia, California, and Texas. White has been suspended from the practice of law in the District of Columbia since 1997 for nonpayment of dues and has never been admitted to practice law in California or Texas. Rules 7.1(a)(1), 7.5(a) and 8.4(c) and D.C. App. R. 49(a).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted on the D.C. Bar Web site at www.dcbar.org/discipline. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/
opinions_mojs.jsp
.