Washington Lawyer

Bar Counsel: “The Road Not Taken”: Choosing the Proper Ethical Route

From Washington Lawyer, December 2003

By Joyce E. Peters

Bar Counsel


Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;

Then took the other, as just as fair,
And having perhaps the better claim
Because it was grassy and wanted wear;
Though as for that, the passing there
Had worn them really about the same. . . .1
In writing these words, Robert Frost vividly captured not only the uncertainty confronting a traveler on the roads in rural America, but also the quandaries of deciding which of two paths to follow when the outcome is far from certain. What is clear in this poem is that the traveler may not follow both paths. He must choose one even though one disappears into the “undergrowth” and the other is little used and “wanted wear.”

Robert Frost was not specifically talking about ethical choices in writing this poem, but he could have been. Ethical outcomes are often not clear from the beginning. There may be landmarks to help guide the ethical traveler, but there is also plenty of undergrowth that may obscure the correct ethical choice. That undergrowth may be especially thorny or tangled for lawyers when the ethical rules of more than one jurisdiction are applicable, and choices must be made between two inconsistent sets of ethical rules.

Having to choose between sets of ethical rules is not an unusual situation for lawyers in the District of Columbia. Records of the District of Columbia Bar indicate that only 21 percent of its total membership (active, inactive, and judicial) is licensed solely in the District of Columbia. That means that 79 percent is licensed in two or more states. The membership percentage of District of Columbia lawyers with licenses in more than one state is also growing, as the vast majority of new lawyers admitted in the District of Columbia are admitted on motion, rather than by examination.

In addition, federal lawyers (without regard to where they may be licensed) have the further requirement from 28 U.S.C. § 530B, titled “Ethical standards for attorneys for the Government,” that they are “subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” This means that federal lawyers in particular are frequently confronted with choice-of-ethical-rule issues.

What does this mean to the practitioner holding licenses in more than one state or otherwise lawfully practicing in more than one state? It means making frequent choices about the correct ethical path, as most states begin with the underlying ethical rule that regardless of where the lawyer practices, the rules of the licensing state apply to guide the lawyer’s ethical conduct. In fact, in 1983, when the Model Rules were originally adopted by the American Bar Association (ABA), Rule 8.5 provided: “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.”2 The language of this Model Rule 8.5 makes a lot of sense, as the licensing court that extends the license should be able to control the conduct of those accepting the license. The difficulty, however, is that lawyers often do not practice exclusively in one jurisdiction and could well be subject to conflicting duties under the rules of different states.

In 1993 the American Bar Association amended Model Rule 8.5 to include guidance on choice of law. The report of the ABA Standing Committee on Ethics and Professional Responsibility attempted to explain the rationale behind the amendment as follows:

The objective of this proposed change in Rule 8.5 is to bring some measure of certainty and clarity to the frequently encountered, and often difficult, decisions a lawyer must make when encountering a situation in which the lawyer is potentially subject to differing ethical requirements of more than one jurisdiction. It is generally the case that such decisions cannot await an authoritative ruling or advisory opinion from an independent source.

. . . .

The problem of lack of clear guidance that this proposal seeks to address is exacerbated by the fact that existing authority as to choice of law in the areas of ethics rules is unclear and inconsistent. Some authorities suggest that particular conduct should be subject to only one set of rules, while others suggest that more than one set of rules can apply simultaneously to the same conduct. . . .

The proposed amendment to Rule 8.5 seeks to provide clear answers to these problems in nearly all cases. . . .

In 1995 Illinois became one of the first states to adopt the revised version of Model Rule 8.5. New York also adopted the revised version of Model Rule 8.5 as Disciplinary Rule 1-105. The District of Columbia adopted this new version of Model Rule 8.5 and its commentary in November 1996. Virginia and Georgia also adopted the revised version of Model Rule 8.5 and its commentary. But many jurisdictions did not adopt the amended version of Rule 8.5, expressing concerns over the extent of its reach or how it might apply.

In 2002 the American Bar Association further revised Model Rule 8.5 as part of its consideration of the proposals submitted by the ABA Commission on Multijurisdictional Practice. These changes to Model Rule 8.5 incorporated proposals suggested earlier by the Ethics 2000 Commission. The most recent version of Model Rule 8.5 now includes a provision making it clear that a jurisdiction may impose discipline on a lawyer engaging in misconduct in that jurisdiction regardless of whether the lawyer is licensed to practice there. Thus, entwined with the issue of choice of law, which was originally intended to help lawyers sort out which rules would apply, is the authority of the licensing state to discipline lawyers engaged in misconduct in that state. In a sense, in looking down the path toward choice of law, our ethical traveler has stumbled upon an issue that goes to the heart of state regulation. This is a topic for another day, and it relates to the ongoing debate about multijurisdictional practice that is occurring across the country.

In the District of Columbia, however, the 1993 version of Model Rule 8.5 and its commentary is now in effect. Our Rule 8.5(a) describes the disciplinary authority of the D.C. Court of Appeals by first stating the traditional rule, that is, “A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.” Then Rule 8.5(a) continues: “A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct.” This means that 79 percent of our lawyers may be subject to the exercise of disciplinary authority by more than one state regardless of where they practice. This is the root of the extensive reciprocal discipline practice here in the District.

Rule 8.5(b), however, also contains choice-of-law provisions prescribing which rules this jurisdiction will apply in the exercise of its disciplinary authority. Rule 8.5(b)(1) states that

in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction where the court sits, unless the rules of the court provide otherwise. . . .
As Comment [4] points out, the rationale for this provision is to make lawyers subject to the professional rules of the tribunal before which they are practicing. This language would apply not only to lawyers licensed here and in another state who practice in the other state’s courts, but also to lawyers licensed here who are admitted pro hac vice in any other court. For example, this language would include a lawyer licensed in both Maryland and the District of Columbia who tries a case in a Maryland state court, as well as a lawyer admitted solely in the District of Columbia or in the District of Columbia and elsewhere (but not Maryland) who is admitted pro hac vice in Maryland and tries a case in a Maryland state court. In both situations Rule 8.5(b)(1) requires analysis of the lawyer’s ethical conduct under the Maryland rules.

For other conduct not in a court, Rule 8.5(b)(2) provides:

(i) If the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and
(ii) If the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct. [Emphasis added.]
     The comments describe the purpose behind this choice-of-law provision. In particular, Comment [2] notes: “A lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations.” Comment [3] continues: “Paragraph (b) seeks to resolve . . . potential conflicts. Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession. . . .” If any particular conduct is subject to only one set of rules, Comment [3] states that making the decision on which rules to apply should be as “straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions.”

When two jurisdictions have an interest in the same conduct and both have adopted the 1993 revised Model Rule 8.5, Comment [5] notes that

they should, applying the rule, identify the same governing ethics rules. They should take all appropriate steps to see that they do apply the same rule to the same conduct, and in all events should avoid proceeding against a lawyer on the basis of two inconsistent rules.
But not all states have adopted the 1993 version of Model Rule 8.5. So inconsistent results are possible when the lawyer holds multiple licenses or is admitted pro hac vice before a court.

The choice-of-law provision has been part of Rule 8.5(b) in the District of Columbia since 1996, but the court has only directly applied it in one original case, In re Gonzalez.3 In applying the rule, the court stated:

In the present case, the charged misconduct occurred in connection with a proceeding in a Virginia court in which Gonzalez, a member of the Virginia bar, was counsel of record. The parties, the Hearing Committee, and the Board all agree that, under these circumstances, the disciplinary rules of the Commonwealth of Virginia apply, and we so hold.4
In Gonzalez, after following the black-letter instructions of Rule 8.5(b), the court applied the Virginia rules, found a violation of those rules, and ordered imposition of an informal admonition.5 The court’s choice of law, however, did not affect the ultimate outcome in Gonzalez. The Virginia rule (DR 4-101(A)) then in effect upon which the court based the discipline and District of Columbia Rule 1.6 were nearly identical. Both proscribed a lawyer from knowingly revealing a secret of his client.

Apart from original prosecutions here, the application of Rule 8.5(b) may also arise in connection with reciprocal proceedings. Under D.C. Bar R. XI, § 11(c)(5), the court will not impose reciprocal discipline if “[t]he misconduct elsewhere does not constitute misconduct in the District of Columbia.” For instance, in In re Youmans,6 a reciprocal matter from New Jersey, the New Jersey disciplinary authorities found that the attorney, in addition to other misconduct, had violated New Jersey rules when he deposited a client’s advance fees into his personal account instead of his trust account. In the reciprocal proceeding here, the court agreed with the Board on Professional Responsibility that because advance fees here were not then required to be held in the same way as in New Jersey,7 “ ‘this misconduct elsewhere does not constitute misconduct in the District of Columbia,’ D.C. Bar Rule XI § 11(c)(5), and may not be the subject of reciprocal discipline.”8

The decision in both of these cases, however, predated the adoption of the current Rule 8.5 with its choice-of-law provision. In another reciprocal matter, In re Swisher,9 the court concluded that misconduct in West Virginia—the attorney’s failure to pay an amount he owed on a promissory note—would not constitute misconduct here because, as yet, the District of Columbia has not found such conduct to constitute a disciplinary violation in an original matter. However, the conduct in Swisher occurred in 1994, prior to the 1996 effective date of Rule 8.5(b). The court did impose reciprocal discipline in Swisher but based it on other misconduct, that is, the attorney’s failure to cooperate with the West Virginia disciplinary authorities.

The court has never decided a case in which the application of Rule 8.5(b) in a disciplinary proceeding would affect the outcome. If, however, the goal of the choice-of-law provision in Rule 8.5(b) is to provide consistency for the lawyer, the community, and the disciplinary authorities and to establish one set of ethical rules to apply to a particular ethical situation, as Comments [3] and [5] to that rule suggest, the choice-of-law provisions should be applied in both original and reciprocal proceedings. It would be anomalous to apply one set of ethical standards if the case arises as an original matter (which always can occur under D.C. Bar Rule XI) and a different set of ethical standards if the case is handled as a reciprocal matter. To do so would undermine the reason for adopting the revised version of Rule 8.5 in the first place. One set of ethical rules should apply regardless of the nature of the disciplinary proceeding.

Robert Frost concludes his poem with these words: “Two roads diverged in a wood, and I— / I took the one less traveled by, / And that has made all the difference” (emphasis added). For our ethical traveler, however, the application of our current choice-of-law provision in Rule 8.5(b) should ensure consistency and facilitate the traveler’s selection of the right ethical path. And with our Rule 8.5(b), regardless of how the traveler makes the trip, the same ethical standards should apply at the final destination.

Notes

  1. Robert Frost, The Road Not Taken, in Modern American Poetry (Louis Untermeyer ed., 1919).
  2. Annotated Rules of Professional Conduct 625 (5th ed. 2003).
  3. 773 A.2d 1026 (D.C. 2001).
  4. Id. at 1029.
  5. See id. at 1029–32.
  6. 588 A.2d 718 (D.C. 1990) (per curiam).
  7. Rule 1.15(b) was amended effective January 1, 2000. It now requires advance fees to be placed in the attorney’s trust or escrow account until earned, and is now similar to the New Jersey rule at issue in Youmans.
  8. 588 A.2d at 719; see also In re Gregory, 574 A.2d 265 (D.C. 1990). In Youmans the court found the attorney to have engaged in dishonesty and neglect and imposed a two-year suspension as reciprocal discipline—the same suspension imposed in New Jersey. In Gregory, a reciprocal matter from Maryland involving client solicitation that did not constitute misconduct in the District of Columbia, the court remanded the case to the board, which dismissed it without the imposition of reciprocal discipline.
  9. No. 01-BG-920 (D.C. June 5, 2003).

Disciplinary Actions Taken by the Board on Professional Responsibility
IN RE NEAL M. SHER. Bar No. 207316. August 6, 2003. The board recommends that the court disbar Sher by consent.

IN RE MALAKU J. STEEN. Bar No. 71381. September 10, 2003. The board recommends that the court disbar Steen by consent.

IN RE ANDREW P. ZIMMER. Bar No. 40832. September 29, 2003. In a reciprocal matter from Virginia, the board recommends that the court impose identical reciprocal discipline and revoke Zimmer’s license to practice law, with the right to apply for reinstatement in five years. The Virginia court accepted Zimmer’s resignation and revoked his license to practice law in Virginia to resolve a disciplinary matter involving allegations of trust account mismanagement, failure to communicate with clients, lack of diligence, violations of the Consumer Real Estate Settlement Protection Act, and practicing while having a disability that materially affected his ability to represent a client.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
IN RE DONALD A. CLOWER. Bar No. 948885. September 18, 2003. The court publicly censured Clower. In connection with a personal injury settlement, Clower failed to notify a medical provider promptly of his receipt of settlement funds in which the provider had an interest by virtue of an authorization and assignment agreement, and failed to deliver funds that the provider was entitled to receive, in violation of Rule 1.15(b). In addition, Clower failed to maintain records of his disbursements from the settlement funds, in violation of both Rule 1.15(a) and D.C. Bar R. XI, § 19(f).

IN RE JERRY S. DUNIETZ. Bar No. 362906. September 25, 2003. In a reciprocal matter from Maryland, the court disbarred Dunietz. The Maryland authorities found that Dunietz neglected two matters and told his client that the matters were being handled, when in fact they were not, in violation of Maryland Rules 1.1, 1.3, 1.4(a) and (b), 1.16(a)(2) and (d), 8.1(b), and 8.4(c) and (d). The court concluded that most, and probably all, of the disciplinary violations outlined in the Maryland Court of Appeals opinion would also constitute misconduct here.

IN RE KIM E. HALLMARK. Bar No. 437950. August 28, 2003. The court suspended Hallmark for 90 days, with her reinstatement conditioned upon a showing of fitness to practice law and proof of restitution as directed by the Board on Professional Responsibility. Hallmark failed to keep clients reasonably apprised of the status of matters or to respond to reasonable requests for information, in violation of Rule 1.4(a); to protect clients’ interest upon withdrawal by surrendering client files and returning any unearned fees, in violation of Rule 1.16(d); and to respond to Bar Counsel or comply with orders of the Board on Professional Responsibility, in violation of Rule 8.4(d) and D.C. Bar R. XI, § 2(b)(3) and (4).

IN RE NEAL M. SHER. Bar No. 207316. August 28, 2003. The court disbarred Sher by consent.

IN RE DREW V. TIDWELL. Bar No. 956573. September 11, 2003. The court disbarred Tidwell based upon his conviction in New York State in 1999 of leaving the scene of a fatal automobile accident without reporting it. The court found that the crime involved moral turpitude on the facts, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001), and reflected adversely on his honesty, trustworthiness, and fitness as a lawyer, in violation of Rule 8.4(b).

IN RE DUSHAN S. ZDRAVKOVICH. Bar No. 229567. September 11, 2003. In a reciprocal matter from Maryland, the court suspended Zdravkovich for nine months, with his reinstatement conditioned upon his proof of fitness. The Maryland court indefinitely suspended Zdravkovich based on its determination that in his representation of two clients in related litigation he failed to provide competent representation, in violation of Maryland Rule of Professional Conduct (MRPC) 1.1; failed to act with diligence or promptness in representing clients, in violation of MRPC 1.3; failed to keep clients reasonably informed about the status of their cases, in violation of MRPC 1.4; charged an unreasonable fee, in violation of MRPC 1.5; pursued unmeritorious claims or contentions, in violation of MRPC 3.1; and engaged in conduct prejudicial to the administration of justice, in violation of MRPC 8.4(d).

Informal Admonitions Issued by the Office of Bar Counsel
IN RE YVONNE DAVIS-SMITH. Bar No. 458486. August 15, 2003. Bar Counsel issued Davis-Smith an informal admonition for violating Rule 1.16(a), by failing to withdraw when a physical condition impaired her ability to represent a client.

IN RE SAMUEL C. HAMILTON. Bar No. 310821. September 15, 2003. Bar Counsel issued Hamilton an informal admonition for violating Rules 1.5(a), 1.5(f), and 8.4(d) by accepting legal fees from his client, a court-appointed personal representative, from estate assets without seeking or obtaining prior court approval.

IN RE ERLING HANSEN. Bar No. 192708. July 30, 2003. Bar Counsel issued Hansen an informal admonition for violating Rule 4.2(a) while representing a client, by communicating about the subject of the representation with a party known to be represented by another lawyer in the matter without obtaining either prior consent of the lawyer representing the other party or other legal authorization.

IN RE CHERNOR M. JALLOH. Bar No. 450379. August 28, 2003. Bar Counsel issued Jalloh an informal admonition for violating Rule 1.5(a), by failing to maintain complete trust account records.

IN RE E. GREY LEWIS. Bar No. 930024. August 27, 2003. Bar Counsel issued Lewis an informal admonition for seriously interfering with the administration of justice, in violation of Rule 8.4(d), by failing to appear at trial and to notify his co-counsel of the scheduled trial date.

IN RE REGINALD J. ROGERS. Bar No. 440390. August 28, 2003. Bar Counsel issued Rogers an informal admonition for violating Rule 1.1, by failing to provide competent representation; Rule 1.3(a), by failing to represent his client with diligence and zeal; and Rule 8.4(d), by engaging in conduct that seriously interfered with the administration of justice when he failed to honor a court’s order in a probate matter.

IN RE HARVEY J. VOLZER. Bar No. 263525. July 30, 2003. Bar Counsel issued Volzer an informal admonition for violating Rule 1.5(b), by failing to provide his client a writing setting forth the basis or rate of his legal fees.

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.