Washington Lawyer

Bar Counsel’s Page: Informal Admonitions for Less Serious Misconduct

From Washington Lawyer, December 2001

By Joyce E. Peters

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There’s something different about the disciplinary summaries this month. In addition to reporting actions taken by the District of Columbia Court of Appeals and the Board on Professional Responsibility, this month’s column includes brief summaries of informal admonitions issued to 19 attorneys, which Bar Counsel reported to the D.C. Court of Appeals in July 2001. Not previously reported by the Bar, these informal admonitions reflect the resolution of cases involving minor misconduct.

In most cases informal admonitions are issued by Bar Counsel after review and approval by a contact member of the Board on Professional Responsibility pursuant to Bar Counsel’s authority in section 8(b) of Rule XI of the Rules Governing the District of Columbia Bar. However, a quick perusal of these admonitions reveals that sometimes Bar Counsel issues an informal admonition at the direction of the board pursuant to Board Rule 13.7, such as in the cases of In re McClain and In re Hannapel, and sometimes the court directs Bar Counsel to issue an informal admonition to resolve a case, as in In re Gonzalez. Regardless of how the informal admonition comes to be issued, it remains the lowest form of discipline for attorneys under the jurisdiction of the District of Columbia Court of Appeals. It is basically Bar Counsel’s tool for resolving disciplinary misconduct that does not warrant a more serious sanction, but that still needs to be part of the attorney’s record.

An attorney who is offered an informal admonition by Bar Counsel may choose not to accept it and may request a formal hearing in writing. When that happens, Bar Counsel vacates the informal admonition and institutes formal charges by filing a petition. The executive attorney for the board then assigns the case to a hearing committee and schedules a hearing. The hearing committee will consider the case under section 8(c) of Rule XI as if no informal admonition had ever been initiated.

Neither Bar Counsel nor the hearing committee may add a charge to the petition if the charge was not included in the rejected admonition but arose from circumstances related to that misconduct and known to Bar Counsel when the admonition was offered. See Board Rule 6.3. New misconduct not considered as part of the rejected informal admonition could be added, but Board Rule 6.3 prevents an attorney from being disadvantaged by requesting a hearing. The attorney need not worry that Bar Counsel will add charges that could have been included in the rejected admonition but were not.

Once the case is heard, however, the recommended sanction is not limited if misconduct is found. The hearing committee may recommend a dismissal, an informal admonition, or a more severe sanction.

Informal admonitions, once issued, become a permanent part of the attorney’s disciplinary record. If the attorney should engage in subsequent misconduct, the informal admonition would be considered as prior discipline. Prior to January 1, 1995, all informal admonitions were confidential. Since then, however, they have become public matters, and there is no private attorney discipline in the District of Columbia. As part of the D.C. Bar’s effort to upgrade access to disciplinary information, the full text of public informal admonitions issued by Bar Counsel will ultimately be available online in PDF format on the D.C. Bar Web site, just as the decisions of the court and the board are now.

The informal admonitions reported this month cover a wide spectrum of less serious misconduct by attorneys. More than 15 different types of rule violations are reflected in these cases. Among them, failure to have a written fee agreement for a new client in violation of Rule 1.5(b) of the D.C. Rules of Professional Conduct, failure to surrender the client’s file upon termination of representation in violation of Rule 1.16(d), failure to exercise diligence or zeal in representation of a client in violation of Rule 1.3, and failure to communicate with a client in violation of Rule 1.4 are typical of the sorts of violations that may result in an informal admonition.

All complaints are investigated individually. Factors such as the nature of the violation, the harm to the client or others, the lawyer’s experience, and the length and duration of the violation are weighed and evaluated in deciding whether an informal admonition or some other disposition is appropriate. Noteworthy, however, is that none of the reported informal admonitions involves misappropriation of client or third-party funds or dishonesty, either of which is viewed as a serious matter and will result in the filing of a petition.

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Robert L. Koven. 111 North Washington Street, Rockville, Maryland. July 27, 2001. In a reciprocal matter from Maryland, the board recommends that the court suspend Koven for two years, nunc pro tunc to January 19, 2001, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Koven was hired by a client to file applications for alien labor certifications on behalf of the client’s employees; he failed to file the applications, advised his client and the employees that the applications had been filed, created false documents to reflect that the applications had been filed, failed to refund the unearned fee to the client, and failed to cooperate in the ensuing disciplinary investigation. The Maryland court suspended Koven indefinitely, with the right to apply for reinstatement after two years, for commission of a criminal act that reflected adversely on his honesty or fitness as a lawyer, engaging in conduct involving dishonesty and conduct prejudicial to the administration of justice, and failing to provide competent representation, to represent clients diligently, to communicate with clients or respond to reasonable requests for information, to protect clients’ interests upon termination, or to cooperate with the disciplinary authorities.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Richard W. Balsamo. Balsamo, Distefano & Dixon PC, 1250 24th Street, Washington, D.C. August 30, 2001. In a reciprocal matter from the United States Court of Appeals for the District of Columbia Circuit, the court suspended Balsamo for 30 days, nunc pro tunc to November 30, 2000. The federal court suspended Balsamo for 30 days for repeated failures to meet court deadlines, incompetence, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice in connection with his representation of appellants in a civil matter. Balsamo was automatically reinstated effective December 30, 2000.

In re Carrie L. Fair. 1412 Dale Drive, Silver Spring, Maryland. September 13, 2001. The court suspended Fair for 14 months, with the requirement that she demonstrate fitness to practice law prior to reinstatement. Fair, in connection with an estate matter, paid herself fees without prior court approval (at a time when such approval was statutorily required) and overpaid herself for fees once she had obtained court approval. The court found that she negligently misappropriated estate funds, engaged in conduct that seriously interfered with the administration of justice, took an illegal fee, intentionally failed to seek a client’s legal objectives, and failed to represent a client diligently or with reasonable promptness.

In re John D. Fauntleroy Jr. 1435 Kennedy Street NW, Washington, D.C. September 20, 2001. The court disbarred Fauntleroy by consent.

In re Demetrios C. Kirkiles. 200 SE 6th Street, Fort Lauderdale, Florida. August 23, 2001. In a reciprocal matter from Florida, the court publicly censured Kirkiles. Kirkiles admitted that he had failed to provide competent representation or to act with reasonable diligence and promptness, made an agreement prospectively limiting his malpractice liability with a client who was not independently represented, and engaged in conduct prejudicial to the administration of justice in connection with an immigration matter. The Florida court issued him a public reprimand, the functional equivalent to a public censure in this jurisdiction.

In re Jephunneh Lawrence. 3616 Horner Place SE, Washington, D.C. July 26, 2001. The court suspended Lawrence indefinitely, with the requirement that he demonstrate recovery from disability prior to reinstatement.

In re Robert B. Patterson. PO Box 2051, Middleburg, Virginia. August 23, 2001. In a reciprocal matter from Virginia, the court suspended Patterson for 90 days. Patterson consented to a 90-day suspension in Virginia for representing a client in court at a time when he knew that his license to practice had been administratively suspended for failure to pay Virginia Bar dues and for misrepresenting to a judge that he had no knowledge of the suspension.

In re Gregory J. Schwartz. 1825 I Street NW, Washington, D.C. August 14, 2001. In a reciprocal matter from Maryland, where Schwartz was suspended for 18 months, with all but 60 days stayed, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.

In re Allen M. Shore. 2450 Hollywood Boulevard, Hollywood, Florida. August 7, 2001. In a reciprocal matter from Florida, where Shore was permitted to resign in lieu of discipline, the court temporarily suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. Shore was already temporarily suspended in this jurisdiction, effective September 25, 1996, based upon an interim suspension in Florida.

In re Jane L. Wagner. 6100 Princeton Avenue, Glen Echo, Maryland. September 20, 2001. The court disbarred Wagner by consent.

Informal Admonitions Issued by the Office of Bar Counsel
In re Paul S. Allen. Paul Shearman Allen & Associates, 1329 18th Street NW, Washington, D.C. May 7, 2001. Bar Counsel issued Allen an informal admonition for failing to represent a client diligently, to keep the client reasonably informed about the status of her case, or to explain the matter to the extent reasonably necessary to permit her to make informed decisions regarding the representation in connection with an immigration matter.

In re John L. Beaman. 4660 Martin Luther King, Jr. Avenue SW, Washington, D.C. March 30, 2001. Bar Counsel issued Beaman an informal admonition for practicing law while administratively suspended for failure to pay Bar dues.

In re John L. Beaman. 4660 Martin Luther King, Jr. Avenue SW, Washington, D.C. April 26, 2001. In connection with three separate disciplinary complaints involving criminal matters, Bar Counsel issued Beaman an informal admonition for failing to represent two separate clients competently, to serve two clients with skill and care commensurate with that afforded to clients by other lawyers in similar matters, to represent two clients diligently, to keep two clients reasonably informed about the status of their cases, to provide one client written notice of the rate or basis of his fee, or to surrender three clients’ papers or other property after the representations ended.

In re Wayne R. Cohen. 1000 Connecticut Avenue NW, Washington, D.C. June 8, 2001. Bar Counsel issued Cohen an informal admonition for failing to notify a third party of his receipt of funds in which the party had an interest or to remit the funds in a timely manner.

In re John Critzos II. 5210 Indian Head Highway, Oxon Hill, Maryland. March 30, 2001. Bar Counsel issued Critzos an informal admonition for failing to disburse funds to an interested third party or to hold the funds in trust pending resolution of a dispute over them in connection with a personal injury matter.

In re Douglas B. Evans. 9224 Edwards Way, Adelphi, Maryland. May 3, 2001. Bar Counsel issued Evans an informal admonition for failing to comply promptly with reasonable requests for information or to provide written notice of the rate or basis of his fee in connection with a criminal matter.

In re Edward Gonzalez. 7921 Jones Branch Drive, McLean, Virginia. June 11, 2001. At the direction of the District of Columbia Court of Appeals, Bar Counsel issued Gonzalez an informal admonition for revealing a client’s secrets in a motion to withdraw in a civil matter.

In re Jonathan E. Halperin. Regan, Halperin & Long, PLLC, 900 19th Street NW, Washington, D.C. January 31, 2001. Bar Counsel issued Halperin an informal admonition for failing to notify a third party of his receipt of funds in which the party had an interest, to remit the funds in a timely manner, or to supervise a nonlawyer assistant in connection with a personal injury settlement.

In re Timothy B. Hannapel. 9033 Ottawa Place, Silver Spring, Maryland. June 29, 2001. At the direction of the Board on Professional Responsibility, Bar Counsel issued Hannapel an informal admonition for commingling and failing to hold entrusted funds in a specially designated trust or escrow account in connection with employment matters.

In re John T. Incorvia. 655 NW 128th Street, Miami, Florida. May 22, 2001. Bar Counsel issued Incorvia an informal admonition for failing to notify a third party of his receipt of funds in which the party had an interest or to remit the funds in a timely manner in connection with two personal injury matters.

In re Leroy T. Jenkins. Howard University Office of General Counsel, 2400 6th Street NW, Washington, D.C. January 31, 2001. Bar Counsel issued Jenkins an informal admonition for failing to provide written notice of the rate or basis of his fee in an employment matter.

In re John L. Machado. Law Office of Alan Toppelberg, 1444 N Street NW, Washington, D.C. May 2, 2001. Bar Counsel issued Machado an informal admonition for failing, in connection with a criminal matter, to represent a client competently, to serve the client with skill and care commensurate with that afforded to clients by other lawyers in similar matters, to represent the client diligently, to act with reasonable promptness, to keep the client reasonably informed about the status of his case, to explain the matter to the extent reasonably necessary to permit the client to make informed decisions, or to surrender papers to a client after the representation ended; intentionally failing to seek the client’s legal objectives; and engaging in conduct that seriously interfered with the administration of justice.

In re Charles E. McClain Sr. C. E. McClain Sr. & Associates LLC, 3100 Ritchie Road, Forestville, Maryland. July 10, 2000. At the direction of the Board on Professional Responsibility, Bar Counsel issued McClain an informal admonition for failing, in connection with a probate matter, to provide competent representation and taking an illegal fee (by taking a fee from estate funds without prior court approval at a time when such approval was statutorily required).

In re Donald L. McClure. Donald L. McClure Sr. and Associates, 7307 Hanover Parkway, Greenbelt, Maryland. June 6, 2001. Bar Counsel issued McClure an informal admonition for engaging in conduct that seriously interfered with the administration of justice in connection with a civil appeal.

In re Severina B. Rivera. 1322 18th Street NW, Washington, D.C. January 29, 2001. Bar Counsel issued Rivera an informal admonition for failing, in connection with a criminal matter, to represent a client competently, to serve the client with skill and care commensurate with that afforded to clients by other lawyers in similar matters, to represent the client diligently, to act with reasonable promptness, or to surrender papers to the client after the representation ended; intentionally failing to seek the client’s legal objectives and prejudicing the client’s case during the course of the representation; and engaging in conduct that seriously interfered with the administration of justice.

In re Sol Z. Rosen. 2501 Calvert Street NW, Washington, D.C. February 14, 2001. In connection with two separate disciplinary complaints involving employment matters, Bar Counsel issued Rosen an informal admonition for failing to provide clients written notice of the rate or basis of his fee.

In re Pablo Santiago Jr. 12223 Pine Park Court, Fairfax, Virginia. January 3, 2001. Bar Counsel issued Santiago an informal admonition for failing to represent a client diligently in connection with an immigration matter.

In re Richard A. Scully. 3027 O Street NW, Washington, D.C. April 26, 2001. Bar Counsel issued Scully an informal admonition for engaging in deceptive or misleading conduct and conduct that seriously interfered with the administration of justice in connection with an immigration matter.

In re Andrew M. Steinberg. 7767 Asterella Court, Springfield, Virginia. March 26, 2001. Bar Counsel issued Steinberg an informal admonition for failing to keep a client reasonably informed about the status of her case in connection with a custody matter.

In re Joseph W. Thomas. 650 Poydras Street, New Orleans, Louisiana. February 14, 2001. Bar Counsel issued Thomas an informal admonition for failing to surrender a former client’s case file promptly after her request in connection with a medical malpractice matter.

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.

Correction: The disciplinary action of Timothy F. X. Cleary that appeared in this column in October included a business address presumed to be current as of the date of publication and in accordance with Rule II, section 2, of the Rules Governing the District of Columbia Bar, which obligates members of the Bar to report any change of address within 30 days. The firm of Ashcraft & Gerel, LLP wishes to make known that Timothy Cleary left its employ on December 31, 1990. The Washington Lawyer regrets the misinformation.