Washington Lawyer

Bar Counsel

From Washington Lawyer, April 2012

Illustration by Mick Wiggins

The following letter was written by an imaginary law school graduate and addressed to the members of the D.C. Bar. We publish it here for your consideration.

Dear Seasoned Practitioner:

I am a recent law school graduate, and I’m writing you today via the “Bar Counsel” column as you previously have expressed your distaste for text messaging. The letters on my keyboard are so far apart my fingers are cramping up, but I am willing to go through this just to connect with you. I want you to know some of what I’m going through.

Last night, while cruising the Web for some contract document review work, I saw an advertisement for an online legal document service. The announcer—also a founder—said it was the place to go for all one’s “routine” legal needs. The ad asserts that this Web–based service is quicker, more efficient, and cheaper than hiring me. As an added bonus, those smart enough to avoid hiring me can simultaneously organize their music, check their e–mail, and watch their favorite show all while submitting the information needed for their last will and testament.

This is my world. A world where, increasingly, people look at me and say: “I don’t need you, I’ve got the Internet.”

Now, you may find it ironic for me to complain about technology. In fact, I have occasionally heard it said that I spend more time punching letters on my handheld device than conducting any actual interaction with human beings. If this is really how I come off, it’s only because I have no choice. In a job market this uncertain, I have to be ready to market and brand myself on sites such as LinkedIn and Facebook in a way that helps me stand out amongst, or at least compete with, all the other talent out there. It does not matter that I avoided business school specifically because I hate words like marketing and branding.

Over the past few years, I have noticed that you have received an e-mail or two about an ethically challenged attorney tripping up on social media. These are the stories about the attorney who “friends” a judge on Facebook during a pending trial, or “tweets” musings on his own performance while the jury deliberates. These may be entertaining tales, but I submit to you that they are less about the dangers of technology and more about the dangers of bad judgment. Most people I know are savvy enough to realize that ex parte means ex parte, whether they are in the courthouse bathroom or chatting online.

The real question isn’t whether technology has the power to sap common sense, but how technology will affect our profession. As the services I will one day provide are increasingly identified as something that can be chopped up and sold a la carte, and as my personal connections focus more on breadth than depth, I may start to lose sight of the fact that an attorney–client relationship is a fiduciary—not just a business—relationship. And if I lose sight of the fiduciary nature of what I do, there is a real danger that I will lose sight of some of the core ethical obligations of being an attorney, not to mention some of the most rewarding aspects of the work.

Given these dangers, and whatever your personal preferences are regarding technology and its use, I hope you will take time to contribute to the discussion moving forward.[1]

Sincerely,
A. New Lawyer

Note
[1] See also Summary of Actions by the ABA Commission on Ethics 20/20, Last accessed Feb. 24, 2012.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
In re Jack B. Johnson. Bar No. 344291. January 30, 2012. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Johnson pursuant to D.C. Code § 11-2503(a), based upon his conviction of crimes of moral turpitude per se for which disbarment is mandatory under section 11-2501(a)(2001). Johnson pled guilty in the United States District Court for the District of Maryland to violating 18 U.S.C. §§ 1951 and 2 (attempted extortion under color of official right) and 18 U.S.C. §§ 1512(b)(2)(B) and 2 (attempted witness and evidence tampering).

In re John H. Pye Jr. Bar No. 436695. January 26, 2012. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Pye for intentional and unintentional misappropriation. In connection with his service as the successor personal representative of an estate, Pye violated rules pertaining to lack of skill and care; lack of promptness; unreasonable fee; commingling, intentional misappropriation, and failure to maintain complete financial records; failure to promptly deliver funds; failure to protect a client’s interest on termination of representation; conduct involving dishonesty, fraud, deceit, or misrepresentation; and serious interference with the administration of justice. Rules 1.1(b), 1.3(c), 1.5(a), 1.15(a), 1.15(b), 1.16(d), 8.4(c), and 8.4(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
In re James W. Beane Jr. Bar No. 444920. January 26, 2012. The D.C. Court of Appeals reinstated Beane with the following conditions: (1) Every six months for a period of three years, Beane must file a written report with Bar Counsel that specifies (a) his efforts during that period toward full repayment of $29,935 to the Clients’ Security Fund; (b) both the nature of any work he has performed and the continuing legal education he has undertaken during the period; and (c) whether he personally has taken on new clients (as opposed to performing legal work for other attorneys), and if so, the systems set up to segregate client funds and to assure adequate communication with clients.

Additionally, Beane must consult with the D.C. Bar Practice Management Advisory Service prior to reentry into private practice. Beane shall execute any necessary waivers of confidentiality required for Bar Counsel to obtain information on Beane’s compliance with the repayment condition. The court stated that failure to fully comply with the above conditions and to fully repay the Clients’ Security Fund within three years may result in the revocation of the reinstatement order.

In re David E. Fox. Bar No. 165258. January 19, 2012. The D.C. Court of Appeals suspended Fox for 45 days. While representing a client in a civil matter, Fox failed to provide competent representation, failed to serve the client with skill and care, failed to represent the client zealously, failed to act with reasonable promptness, and failed to communicate with and explain matters to the client. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), and 1.4(b).

In re Robert W. Mance III. Bar No. 285379. January 26, 2012. The D.C. Court of Appeals accepted Mance’s petition for negotiated discipline for four consolidated matters and suspended Mance for six months with fitness for violations of Rules 1.1(a), 1.1(b), 1.3(a), 1.5(b), 1.7(b), 1.8, and 1.16(d). In this consolidated matter, the first case of misconduct stemmed from Mance’s representation in a civil matter. Following an appeal to Superior Court from an administrative action, the Superior Court directed Mance to file a brief. Mance failed to comply or seek an extension, resulting in the dismissal of the case for want of prosecution. As a result, the client lodged a complaint with Bar Counsel. Mance subsequently met with the client and assured him that he would reopen the case and appeal the dismissal, thereby persuading the client to withdraw the complaint with Bar Counsel. Shortly thereafter, Mance entered into a written agreement with the complainant to pay him $19,500 as settlement of “any issues or differences between them.” Mance failed to inform the client of his right to seek outside counsel to review this proposed settlement. After executing the agreement, Mance paid $900, but he made no further payments and stopped communicating with the client, who then renewed his complaint with Bar Counsel.

The second case of misconduct stemmed from Mance’s failure to respond to a request for production of documents in a timely manner. Although the trial court directed compliance by a certain date, and the complainant personally provided Mance with the subject documents, Mance failed to submit them to opposing counsel. As a result, opposing counsel requested sanctions, which the trial court granted.

The third case of misconduct stemmed from Mance’s representation in a criminal matter. The client, who was incarcerated and, at the time, was represented by court-appointed counsel, requested his file from Mance, but Mance failed to produce it. The client notified Bar Counsel, which opened an investigation that ultimately led to the transmission of the file materials.

In re Roger H. Moore. Bar No. 193334. January 5, 2012. The D.C. Court of Appeals denied Moore’s petition for reinstatement.

In re Barry Nakell. Bar No. 198382. January 26, 2012. The D.C. Court of Appeals accepted Nakell’s petition for negotiated discipline for two consolidated matters and suspended him for six months, with the entire sanction stayed in favor of a three-year period of probation on the condition that Nakell not be found guilty of any federal or state crimes, or found to have violated any Rules of Professional Conduct. Nakell violated Rules 8.4(b) and 8.4(c). Nakell stipulated to shoplifting and two acts of misdemeanor larceny in 1991 (in the amount of $11.95) and in 1999 (involving a book).

In re Paul B. Royer. Bar No. 484398. January 26, 2012. The D.C. Court of Appeals accepted Royer’s petition for negotiated discipline and suspended him for 30 days, with credit for a 30-day suspension that the court already imposed, pursuant to D.C. Bar Rule XI, § 10(c). Royer was convicted of misdemeanor theft of services valued at $19, a serious crime as defined by D.C. Bar Rule XI, § 10(b)(2).

Reciprocal Matters
In re Peter H. Jacoby. Bar No. 285692. January 12, 2012. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Jacoby for 36 months with fitness, nunc pro tunc to November 26, 2008.

In re Jeffrey A. Nemerofsky. Bar No. 476841. January 12, 2012. In a reciprocal matter from California, where Nemerofsky resigned from the practice of law with disciplinary charges pending, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and suspended Nemerofsky for five years with fitness, nunc pro tunc to November 25, 2009.

Interim Suspensions Issued by the District of Columbia Court of Appeals

In re Gerald I. Katz. Bar No. 237925. January 20, 2012. Katz was suspended on an interim basis based upon discipline imposed in Virginia.

Disciplinary Actions Taken by Other Jurisdictions

In accordance with D.C. Bar Rule XI, § 11(c), the D.C. Court of Appeals has ordered public notice of the following nonsuspensory and nonprobationary disciplinary sanctions imposed on D.C. attorneys by other jurisdictions. To obtain copies of these decisions, visit www.dcbar.org/discipline and search by individual names.

In re Robert M. Kramer. Bar No. 359273. On March 30, 2011, a Grievance Committee of the Supreme Court of Florida issued Kramer an admonishment for his pattern or practice of continuing to employ aliens in the United States, knowing and with constructive knowledge that the aliens were or had become unauthorized aliens with respect to employment in the United States.

In re Robert M. Kramer. Bar No. 359273. On May 19, 2011, the Attorney Discipline Probable Cause Committee of the Supreme Court of Arizona admonished Kramer for conduct in violation of 8 U.S.C. §§ 1324a(a)(2) and (f) pertaining to constructive knowledge of employment of unauthorized aliens.

In re Brian W. Shaughnessy. Bar No. 89946. On March 2, 2011, Shaughnessy was formally admonished by the United States District Court for the District of Maryland for multiple discovery violations and failure to comply with court orders.

Informal Admonitions Issued by the Office of Bar Counsel

In re Ross D. Hecht. Bar No. 439909. December 29, 2011. Bar Counsel issued Hecht an informal admonition. While retained to represent an incarcerated client in a criminal matter, Hecht revealed confidences and secrets of his client in a motion to withdraw and during the hearing in open court. Rule 1.6.

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/attorney-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.dccourts.gov/internet/opinionlocator.jsf.