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Washington Lawyer

Change Is the Only Constant

From Washington Lawyer, April 2015

By Gene Shipp

barcounselBig issues that could dramatically change the practice of law dominated the recent National Organization of Bar Counsel (NOBC) meeting in Houston. Some of the same issues were being discussed simultaneously at the Midyear Meeting of the American Bar Association. Globalization (which is another way of saying all lawyers are getting closer and impacting each other’s practice), Access to Justice (which is another way of saying the legal profession has to do a better job of providing legal services or possibly lose self-regulation to consumer forces), and Alternative Business Structures (which relates to both of these concepts and is forcing us to rethink our approach to the delivery of legal services) are at play.

It is hard to wrap your mind around all the changes that are upon us. Do you remember when you had to go to a law library to do your research? Do you remember when the IT person told you how e-mail was going to save you time? That one still bothers me now that I get more than 20,000 work e-mails a year. (Add yours up and it will shock you!) Sometimes a period of reflection is necessary. Let’s take that moment to reflect:

International Regulation. When I first found out an organization was going to be started to work on international regulation, I asked around the office about our cooperation or need for assistance from other countries or international regulators. While I was used to having conversations with visiting foreign delegations, I was completely surprised to find that in at least a dozen matters, we had to rely upon witnesses or cooperation from foreign countries for our investigations and prosecutions. I have now attended three meetings of this new informal organization. The organization has met with the NOBC on one occasion and is planning a second meeting this summer in Toronto. In addition, the Conference of Chief Justices has taken a leadership role in promoting cooperation among regulators. Laurel S. Terry, a law professor at Penn State University, has just written a comprehensive article on these issues.[1]

Alternative Business Structures. What is interesting about this renewed debate is that the D.C. Rules of Professional Conduct have permitted a limited version of ABS for more than 20 years. Let’s back up because this topic often leaves those without a background in this area in the dark. The District of Columbia is the only jurisdiction in the United States that permits a nonlawyer to have an ownership position in a law firm that solely provides legal services. The rest of the world either already permits nonlawyer participation, nonlawyer passive investment, or is looking into the issue. At the recent NOBC meeting Hope C. Todd, legal ethics counsel for the D.C. Bar, did a wonderful presentation on this issue. To summarize, we should care because tackling access to justice issues using new vehicles for providing legal services is in play and should be discussed. The District could have been an incubator for a law firm that only provides legal services with a nonlawyer partner, but the Rules of our sister jurisdictions, which prohibit an attorney from belonging to such firms, have stalled any meaningful tests here.

Limited Practice Rule for Limited License Legal Technician. LLLT is an innovative program that recently has been in the news. Washington State has adopted rules to license paralegals to provide legal services with and without supervision of the law firm setting.[2] This is an attempt to regulate the provision of legal services by highly trained paraprofessionals while promoting access to justice for those who have legal needs but do not require all the skills of an attorney. It is a program we all will be watching.

Self-Regulation. My concern, which I have been mulling about for the past few years, is that we are the last profession that regulates itself. We are able to do this under the auspices of the courts. We cannot be a trade association that protects its members from accountability for misconduct. We must protect the public (both clients and the public in general) from unethical behavior. This does not mean we cannot buff up an attorney who just needs some skills training. (What law school really teaches how to manage entrusted funds or the distinction between confidentiality and secrets?) The legal profession has an obligation to have a disciplinary system that is sufficiently independent and funded to handle the responsibility of self-regulation. My only point here is that self-regulation is ours to lose, and we must guard it by doing the job and doing it well.

If change is the only constant, we are facing a ton of constant change in our immediate future, g.

Gene Shipp serves as bar counsel for the District of Columbia.


Notes  
[1] Laurel S. Terry, Globalization and the ABA Commission on Ethics 20/20: Reflections on Missed Opportunities and the Road Not Taken, 43 Hofstra L. Rev 95 (2014).
[2] The Washington Rule, APR 28 (Limited Practice Rule for Limited License Legal Technicians) is available at http://1.usa.gov/1EmItqx.


Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters

In re Gilbert Baber. Bar No. 428285. January 15, 2015. The D.C. Court of Appeals disbarred Baber, with reinstatement conditioned upon paying restitution to his client in the amount of $8,093.75, plus interest. This matter concerns Baber’s representation of a client in connection with the probate of the estate of the client’s late mother, who died intestate, and Baber’s filing of a lawsuit against the client in connection with that representation. Baber failed to provide competent representation and to represent the client with skill and care; failed to represent the client zealously and diligently and failed to act with reasonable promptness in the representation; failed to keep the client reasonably informed about the status of the probate matter, failed to comply promptly with reasonable requests for information, and failed to explain the probate matter to the client to the extent reasonably necessary to allow the client to make informed decisions regarding the representation; collected or sought to collect an unreasonable fee; revealed confidences or secrets of the client, used confidences or secrets of the client to the client’s disadvantage, and used confidences or secrets of the client for Baber’s own advantage; failed to take timely steps to the extent reasonably practicable to protect the client’s interests, including but not limited to failing to surrender client papers and property; made a false statement of fact to a tribunal; knowingly made a false statement in connection with a disciplinary matter and/or failed to disclose a fact necessary to correct a misapprehension known by Baber to have arisen in the matter; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaged in conduct that seriously interferes with the administration of justice. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), 1.4(b), 1.5(a), 1.6(a)(1), (2), and (3), 1.16(d), 3.3(a)(1), 8.1(a), 8.4(c), and 8.4(d).

In re Leonard S. Blondes. Bar No. 72140. January 8, 2015. The D.C. Court of Appeals disbarred Blondes by consent, effective forthwith.

In re Alan S. Gregory. Bar No. 411664. January 8, 2015. The D.C. Court of Appeals disbarred Gregory by consent, effective forthwith.

In re Leonard J. Suchanek. Bar No. 134635. January 29, 2015. The D.C. Court of Appeals indefinitely suspended Suchanek based on disability.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters

In re Karen G. Loulakis. Bar No. 334904. January 23, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Loulakis by consent.

In re Layn M. Saint-Louis. Bar No. 457001. January 30, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Saint-Louis for engaging in intentional misappropriation, engaging in dishonest conduct, and failing to safeguard client property. While retained to represent a Nigerian-based Swiss company to help it buy two airplanes, Saint-Louis was entrusted with more than half a million dollars to hold in escrow for use in the transaction. Saint-Louis had the money wired to his operating account, never put the money in trust, and gradually withdrew the money for his personal use. Thereafter, Saint-Louis continued to make these withdraws even after the client disputed his claims for legal fees. Rules 1.15(a), 1.15(c) (re-codified in 2010 as 1.15(d)), 1.15(d) (re-codified in 2010 as 1.15(e)), and 8.4(c).

In re Todd L. Treadway. Bar No. 479233. January 22, 2015. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Treadway by consent.

Interim Suspensions Issued by the District of Columbia Court of Appeals
In re Mark H. Allenbaugh. Bar No. 471455. January 21, 2015. Allenbaugh was suspended on an interim basis based upon discipline imposed in the United States Court of Appeals for the Fourth Circuit.

In re Thomas W. Felder II. Bar No. 463009. January 20, 2015. Felder was suspended on an interim basis based upon discipline imposed in Maryland.

In re John M. Green. Bar No. 476592. January 29, 2015. Green was suspended on an interim basis based upon discipline imposed in Maryland.

In re Mitchell A. Greenberg. Bar No. 436526. January 20, 2015. Greenberg was suspended on an interim basis based upon discipline imposed in Maryland.

In re Douglas E. Mataconis. Bar No. 449978. January 29, 2015. Mataconis was suspended on an interim basis based upon discipline imposed in Virginia.

In re Timothy D. Naegele. Bar No. 161448. January 20, 2015. Naegele was suspended on an interim basis based upon discipline imposed in California.

In re Thomas Plimpton. Bar No. 436571. January 29, 2015. Plimpton was suspended on an interim basis based upon discipline imposed in Maryland and New York.

In re Kenrick A. Small. Bar No. 502463. January 29, 2015. Small was suspended on an interim basis based upon discipline imposed in Massachusetts.

In re Sean Anthony Varnado. Bar No. 982336. January 30, 2015. Varnado was suspended on an interim basis based upon discipline imposed in Maryland.

Informal Admonitions Issued by the Office of Bar Counsel
In re John W. Davis. Bar No. 931600. December 16, 2014. Bar Counsel issued Davis an informal admonition. While retained to represent a client in an employment matter, Davis failed to communicate and failed to provide a retainer agreement or other writing setting forth the basis or rate of the legal fee, as well as the scope of the representation. Rules 1.4(b) and 1.5(b).

In re Gwynndolyn L. Edwards. Bar No. 444464. December 17, 2014. Bar Counsel issued Edwards an informal admonition. While representing a client in a civil matter, Edwards failed to comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. This same conduct seriously interfered with the administration of justice. Rule 1.16(c) and 8.4(d).

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 at www.dcattorneydiscipline.org. 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.