Washington Lawyer

Bar Counsel's Page: Disciplinary Diversion-Amazing Grace!

From Washington Lawyer, December 2000

By Joyce E. Peters

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In the late 18th century John Newton, a reformed slave trader who experienced a great deliverance from a violent storm and later became an ordained priest in Olney, England, penned the words

Amazing grace!
how sweet the sound)
That sav’d a wretch like me!
I once was lost, but now am found,
Was blind, but now I see.

Although he was recounting his religious experience in surviving the stormy seas, his words might aptly describe the effect of Bar Counsel’s offer of disciplinary diversion to an attorney facing formal disciplinary action. Avoiding formal discipline and its ramifications through the diversion process is definitely a matter of grace and a remedial action intended to help the attorney learn from his or her mistake and "see the light" to avoid future mistakes.

Disciplinary diversion, however, is not widely known or much understood within the Bar. This is not surprising, as only certain cases will qualify for the diversion alternative, and diversion only became available as an alternative to formal discipline in 1995. Also, attorneys who accept and successfully complete diversion programs offered by Bar Counsel have no record of formal discipline in the files of Bar Counsel, and the diversion agreement itself is confidential, unless the attorney chooses to make it public. This means that attorneys who successfully complete diversion programs do not have their cases reported by the media or the Bar in any public print medium; they are spared the time and anxiety that accompany formal disciplinary proceedings; their malpractice insurance rates may not be affected; and they continue to maintain a discipline-free record. These benefits suggest that any attorney offered diversion by Bar Counsel should seriously consider it an act of grace and weigh carefully any decision to reject the offer.

The rules concerning diversion are contained in Rule XI, § 8.1, of the District of Columbia Court of Appeals Rules Governing the Bar, which provides that subject to certain limitations, Bar Counsel may offer diversion to any attorney under investigation for a disciplinary violation. Diversion, however, is intended to be used in cases of minor misconduct and is not available if (1) the alleged misconduct has resulted in or is likely to result in prejudice to a client or other person; (2) the attorney has had prior discipline or has previously been offered and accepted diversion, unless exceptional circumstances exist to justify a waiver; (3) the alleged misconduct involves fraud, dishonesty, deceit, misappropriation or conversion of client funds or other things of value, or misrepresentation; or (4) the alleged misconduct constitutes a criminal offense under applicable law. If any of these four situations exists, Bar Counsel may not offer diversion.

In general, the process of diversion occurs at the end of an investigation when Bar Counsel decides to offer diversion in lieu of other disciplinary action. If the attorney acknowledges that Bar Counsel has found a disciplinary violation and agrees to accept diversion, a written diversion agreement is prepared for signature by both parties. The agreement will describe the nature of the misconduct; the diversion program; the time for its completion; any requirements on the attorney or others, such as a practice monitor, to report to Bar Counsel; and the method by which diversion will be completed and success noted. As part of every diversion agreement, there is a requirement that the attorney not engage in further ethical misconduct, or the agreement may be withdrawn at the discretion of Bar Counsel. After both parties execute the agreement, the agreement is subject to review and approval by the designated member of the Board on Professional Responsibility, who could also request additional terms or clarification of the agreement, or could disapprove it. Once it is approved, however, Bar Counsel supervises the diversion and makes the determination based on the terms of the agreement when satisfactory completion of the diversion has occurred and Bar Counsel’s investigation can be closed.

The philosophy and concept behind diversion is to remedy the alleged misconduct by designing a program that will improve the ability of the attorney to practice in accordance with the Rules of Professional Conduct. Bar Counsel has considerable latitude in designing an appropriate program and often will draw on the resources of the Bar in requiring completion of continuing legal education courses, participation in legal pro bono activities with more experienced practitioners, appointment of a practice monitor, or requirements for consultations with the director and appropriate counselors in the Bar’s Lawyer Practice Assistance Program. By drawing on the member programs of the D.C. Bar itself, Bar Counsel can fashion an appropriate program to give the errant attorney a boost, enabling the attorney to avoid discipline and gain knowledge or experience to prevent a recurrence.

Because diversion is available only for minor offenses, diversion is not available in cases involving the mishandling of client or third-party funds, which often lead to disbarment or a lengthy suspension. Cases involving repeated misconduct, such as multiple neglects, also are not normal candidates for diversion. Rather, diversion is likely to involve a single errant slip by an attorney that violates a disciplinary rule but has not caused client harm or does not run afoul of the four conditions discussed above. Often the alternative to diversion may be an informal admonition, but an informal admonition leaves a disciplinary scar on the attorney.

Since diversion as an alternative to formal discipline became available, statistics gathered by the Office of Bar Counsel indicate that the number of informal admonitions has declined as the number of diversions has increased. Since its inception in 1995, 95 lawyers in the District of Columbia have benefited from the diversion program. In 1994, when diversion was not available, there were 59 informal admonitions imposed by Bar Counsel. In 1995, the first year diversions became available, there were 32 informal admonitions and 8 diversions. The following table shows the numbers for the past five years:

 
Informal Admonitions
Diversions
1996
40
20
1997
28
25
1998
29
18
1999
34
17
2000*
39
7
*Through October

Savvy defense counsel representing attorneys facing discipline for minor offenses should be alert to the possibilities that diversion may offer. Because diversion is in lieu of formal discipline, each case is carefully evaluated by Bar Counsel to determine the seriousness of the disciplinary violation and the possibilities that diversion might offer to remedy the violation and put the wayward respondent on the correct path.

How "sweet the sound" of the call from Bar Counsel offering diversion amidst the "dangers, toils and snares" of the disciplinary system. ’Tis truly amazing grace!

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Robert Greg Bailey. July 25, 2000. In a reciprocal matter from Missouri, the board recommends that the court publicly censure Bailey. Bailey was publicly reprimanded by the United States Court of Appeals for Veterans Claims, where he was appointed pro hac vice to represent a client pro bono, for neglecting the client’s case, failing to communicate with the client, and failing to respond to the court’s disciplining body. The Missouri court, in turn, publicly reprimanded him. The board recommends that the court issue Bailey a public censure, the functional equivalent in this jurisdiction to a public reprimand.

In re Richard A. Canatella. September 22, 2000. In a reciprocal matter from California, the board recommends that the court suspend Canatella for 18 months, nunc pro tunc to January 4, 2000, stay execution of all but 30 days of the suspension, and require him to demonstrate compliance with the probationary conditions imposed in California. The California court suspended him for 18 months, stayed execution of all but 30 days of the suspension, and ordered that he serve 18 months’ probation with conditions. Canatella stipulated that he had violated California law by filing 11 frivolous legal matters. Although the provision of the California law that he violated does not have a direct counterpart in District of Columbia law, the board concluded that his actions would have constituted conduct that seriously interfered with the administration if charges had been filed as an original matter in this jurisdiction.

In re William E. Fredenberger. September 14, 2000. The board recommends that the court disbar Fredenberger on consent.

In re Edward Gonzalez. July 27, 2000. The board directed Bar Counsel to issue Gonzalez an informal admonition for revealing a client’s secrets in a motion to withdraw.

In re Lloyd D. Iglehart. July 26, 2000. The board recommends that the court suspend Iglehart for 30 days for commingling entrusted funds with his own and failing to maintain adequate records for his client trust account.

In re Mary Ann Bell Kenno. July 25, 2000. In a reciprocal matter from Maryland, the board recommends that the court disbar Kenno. Kenno consented to disbarment in Maryland while disciplinary complaints alleging misappropriation were pending against her.

In re Richard E. Painter. July 25, 2000. In a reciprocal matter from Maryland, the board recommends that the court disbar Painter. The Maryland court disbarred him for extreme acts of domestic violence committed between 1978 and 1994 that constituted criminal acts that reflected adversely on his fitness as a lawyer and conduct that seriously interfered with the administration of justice.

In re K. Kay Shearin. January 14, 2000. In a reciprocal matter from Delaware, the board recommends that the court suspend Shearin for one year, nunc pro tunc to February 25, 1999, with the requirement that she demonstrate fitness to practice law and certify that she has read the Bar’s Standards for Civility in Professional Conduct prior to reinstatement. The Delaware court suspended Shearin for one year for making false statements of material fact to tribunals, engaging in undignified or discourteous conduct degrading to a tribunal, counseling or assisting a client in criminal or fraudulent conduct, filing claims for which there was no legal basis, failing to make reasonable efforts to expedite litigation, offering false evidence or assisting a witness to testify falsely, making a false statement of material fact or law to a third person, and creating a false public record in civil and bankruptcy matters.

In re Wanda R. Withers. July 28, 2000. The board recommends that the court disbar Withers for misappropriating funds held in trust to pay a medical provider, commingling entrusted funds with her own, and failing to maintain adequate records of funds held in her client trust account.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re R. Rochelle Burns. August 22, 2000. In a criminal matter from the District of Columbia Superior Court, where Burns was convicted of misdemeanor sexual solicitation, the court directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Jerry S. Dunietz. July 27, 2000. In a reciprocal matter from Maryland, the court suspended Dunietz for 60 days, stayed imposition of the sanction, and placed him on probation for two years, nunc pro tunc to February 25, 1998, conditioned upon compliance with conditions set by the Maryland court. Dunietz consented to a 60-day suspension, with imposition of the sanction stayed and a two-year probation ordered, for failing to act with diligence or promptness in representing a client, to notify a third party of his receipt of funds in which the third party had an interest, to deliver to the third party funds that the third party was entitled to receive, or to respond to a demand for information by a disciplinary authority.

In re Lee F. Holdmann. September 21, 2000. In a reciprocal matter from Maryland, where Holdmann was reprimanded, the court directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Lloyd D. Iglehart. September 14, 2000. The court suspended Iglehart for 30 days for commingling entrusted funds with his own and for failing to maintain adequate records for his client trust account.

In re Charles J. McCall. August 8, 2000. In a reciprocal matter from Virginia, where McCall was reprimanded with conditions, the court directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re John H. McDonald. August 8, 2000. In a reciprocal matter from Delaware, where McDonald was reprimanded, the court directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Charles E. Meaden. September 21, 2000. In a reciprocal matter from New Jersey, where Meaden was suspended for three years, with the requirement that he demonstrate fitness to practice law prior to reinstatement, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re T. Carlton Richardson. September 21, 2000. The court affirmed Richardson’s conviction of criminal contempt for practicing law while suspended. On June 27, 1995, in a reciprocal matter from Florida, he was suspended on an interim basis, pending the court’s decision on the final discipline to be imposed. On April 17, 1997, the court suspended him for three years, with the requirement that he demonstrate fitness to practice law prior to reinstatement. When Richardson continued to practice law after the interim suspension, a trial judge held him in criminal contempt and sentenced him to 120 days’ imprisonment, suspended the sentence, and placed him on three years’ probation conditioned upon payment of a $200 fine, $50 court costs, and other conditions.

In re Richard B. Slosberg. August 31, 2000. In a reciprocal matter from Maine, the court suspended Slosberg indefinitely based upon a medical disability with the requirement that he demonstrate recovery from disability prior to reinstatement. The Maine court, which had already suspended Slosberg for violations of disciplinary rules, ordered that he remain suspended until he demonstrates that he is medically fit to resume the practice of law.

In re Robert M. Standard. August 30, 2000. In a reciprocal matter from California and a criminal matter from the United States District Court for the Central District of California, the court suspended Standard and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. Standard resigned in California while disciplinary matters were pending against him. Thereafter he was convicted of filing a false federal tax return and bankruptcy fraud.

In re John R. Willett. September 21, 2000. In a reciprocal matter from Virginia, where Willett was admonished, the court directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

John T. Rooney, assistant bar counsel, and Sharon L. Bradford compiled and edited the foregoing summaries of disciplinary actions.

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.