Washington Lawyer

Bar Counsel: Overcoming Your Fear of Bar Counsel

From Washington Lawyer, December 2007

By Bill Ross

Illustration by Mick Wiggins

When meeting new people in social settings, I’m frequently asked what I do for a living. This seemingly innocuous question always gives me pause. Sometimes my palms sweat and I look around nervously, trying to gauge whether I’m in the company of attorneys. Depending on the surroundings, I may answer that I “protect the public by prosecuting unethical attorneys,” while other times I may say that I “protect ethical attorneys from groundless complaints.” Our office is firmly committed to both goals.

One of the problems we continue to face, however, is that many attorneys are not aware of what our office does or, in fact, that we even exist. Occasionally a hapless attorney will bustle into our office, frantically waving a District of Columbia Bar card, professing an urgent need to meet with a client in private, have one of our secretaries type a pleading, or use the telephone. These types of services aren’t what we have in mind when we say that we “serve” the Bar, the court, and the public. Nonetheless, we think we’re a friendly bunch, and you’re welcome to visit anytime.

For many attorneys, their only exposure to the Office of Bar Counsel is at the mandatory course, which all admittees to the D.C. Bar must attend. Our office always presents one section of the program relating to attorney discipline. Most attorneys admitted since 1994 will remember Bar Counsel Gene Shipp and his inimitably fashionable pink hat, which he uses to demonstrate that once admitted to the Bar, you are answerable to the attorney disciplinary system for actions in any aspect of your life. You are held to a higher standard, and you never take off your attorney hat. (By the time you read this, Gene will have taught his 100th mandatory course. His pink hat seems to be holding up well!)

So, if our office isn’t a lawyer lounge and business center, what does the Office of Bar Counsel actually do? Our office was created by the District of Columbia Court of Appeals to investigate and prosecute misconduct by members of the Bar. The disciplinary system is complaint driven. We don’t run undercover sting operations to entrap unwitting attorneys, we don’t have quotas, and we’re not “out to get” attorneys. Nothing would please us more than being able to announce that we are closing up shop because attorneys are not committing, and never will again commit, ethical misconduct. Then we could retire early or move on to other, even more quixotic, legal careers.

One of our key goals is to avoid the need to discipline attorneys in the first place. The attorneys in our office regularly teach courses and speak to groups of attorneys about their ethical obligations. When disgruntled clients call or walk into our office, the first thing our intake team does is ascertain whether their concerns can be adequately addressed without the need for filing a complaint. An example of this, which occurs all too often, is when clients are unable to locate attorneys who have relocated their offices. As long as an address or phone number has been updated with the Bar, we are able to provide correct contact information and facilitate a (hopefully) joyous attorney–client reunion.

We also carefully screen incoming complaints. Our office declines to investigate many complaints because the alleged facts, even if true, would not warrant discipline. In such a case, an attorney would most likely not even know that a complaint had been filed. There are, regrettably, times when there is no alternative than to institute a formal investigation that may ultimately lead to the imposition of discipline.

We have the discretion to enter into diversion agreements when certain minor misconduct is alleged that did not, or was not likely to, result in prejudice to a client or third party. When possible, we would much rather prevent future misconduct by “buffing up” an attorney through continuing legal education courses. Successful completion of a diversion agreement does not result in any public finding of misconduct and does not constitute discipline.

If you receive a letter from our office, OPEN IT! Depending on the nature of our inquiry, you may wish to review your files or consult with an attorney, but it is imperative that you respond to our letter, as required by the D.C. Rules of Professional Conduct, Rule 8.1 (Bar admission and disciplinary matters) and D.C. Bar Rule XI, § 2 (grounds for discipline). Few things frustrate our office more than having to discipline an attorney for failing to respond to our inquiries in a matter that ultimately would have been dismissed had the attorney filed a prompt and complete answer.

The world is a scary enough place as it is. There’s no need to be unnecessarily afraid of Bar Counsel. Regardless of whether a complaint is dismissed, we offer a diversion agreement, or discipline is ultimately imposed, we strive to complete all investigations as promptly, fairly, and respectfully as possible.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Ronald A. Brown. Bar No. 368880. August 28, 2007. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Brown. The Court of Appeals of Maryland disbarred Brown based upon a finding that he had misappropriated a client’s funds in a personal injury matter. Brown settled the client’s claim for $4,500, deposited the client’s settlement check in his attorney trust account, and then wrote a $4,500 check payable to his law office. The attorney trust account then contained only $105.44, an amount insufficient to cover the $2,280 Brown was obligated to safeguard for his client. The Maryland Court also found that Brown failed to cooperate with Maryland Bar Counsel’s investigation.

In re Mark R. Quinn. Bar No. 272955. August 7, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Quinn by consent.

In re Stanley D. Schwartz. Bar No. 11601. September 25, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Schwartz by consent.

Reciprocal Matters
In re Joel D. Kenwood. Bar No. 387073. September 17, 2007. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals issue an order of admonishment against Kenwood as identical reciprocal discipline. The Supreme Court of Florida admonished Kenwood based on a Conditional Guilty Plea for Consent Judgment in which he admitted that in a letter seeking to withdraw as counsel in a bar admissions matter, he stated that “he did not believe that [his client] had the character or fitness to serve as a bar member and that [he] had not paid his attorney’s fees.” Kenwood stipulated the misconduct violated Florida Rules pertaining to confidentiality of information, conflict of interest, and declining or terminating representation.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Mark C. Herbst. Bar No. 383670. August 2, 2007. The D.C. Court of Appeals suspended Herbst for nine months, with execution of three months of the suspension to be stayed. In addition, the court placed Herbst on two years probation subject to the conditions imposed by the Board on Professional Responsibility in its Report and Recommendation. One of Herbst’s nonlawyer employees was allowed to negotiate the settlement of a client’s personal injury claim, the client was never notified of the settlement, the employee deposited the settlement funds in Herbst’s trust account, and the trust account balance later fell below the amount due the client before funds were disbursed to the client. Thus, Herbst negligently misappropriated entrusted client funds. (Rules 1.1, 1.2(a), 1.4(a)-(b), 1.15(a), and 5.3 (b)).

In re Mark R. Quinn. Bar No. 272955. August 23, 2007. The D.C. Court of Appeals disbarred Quinn by consent.

In re Scott Slaughter. Bar No. 273334. August 2, 2007. The D.C. Court of Appeals suspended Slaughter for three years with fitness. Slaughter violated Rules 8.4(b) and (c) when he forged a state official’s name to a contingency fee agreement, altered his firm’s copy of court filings to erroneously indicate that he represented the state of Arkansas, made continual misrepresentations as to the scope of his representation of the state of Arkansas, and reported billable time to his firm for work done on behalf of the state of Arkansas when he knew it was not a client.

In re Joseph W. Thomas. Bar No. 285460. August 23, 2007. The D.C. Court of Appeals indefinitely suspended Thomas based on disability pursuant to D.C. Bar R. XI, § 13(e).

In re Lenore D. Verra. Bar Number 455438. August 16, 2007. The D.C. Court of Appeals disbarred Verra, and ordered that her disbarment be stayed in accordance with Kersey-style mitigation, and that she be suspended for 30 days, effective immediately, and that following her suspension, she be placed on probation for a period of three years, with the following conditions: (1) Verra will be under the care of a psychiatrist and will attend psychotherapy sessions with a mental health professional weekly, or as directed by the psychiatrist and/or mental health professional. Verra shall submit monthly reports from the psychiatrist or mental health professional regarding compliance with her treatment to the Board on Professional Responsibility, with a copy to Bar Counsel; (2) Verra shall notify the Board on Professional Responsibility and Bar Counsel upon any change in employment at least 30 days before the effective date of such change; and (3) Verra shall notify the Board on Professional Responsibility and Bar Counsel in writing if she intends to handle entrusted funds, and no later than 30 days before the expected receipt of such funds, so that the Board may consider the imposition of appropriate safeguards. Verra failed to communicate the basis or rate of her fee in writing to her client in violation of Rule 1.5 (b); commingled her client’s funds with her own, and recklessly misappropriated these funds, in violation of Rule 1.15 (a); failed to deliver funds due to her client and her medical provider in violation of Rule 1.15 (b); deposited entrusted settlement funds in an improper account in violation of Rule 1.17 (a); and failed to keep records of her handling of her client’s funds in violation of Rule 1.15 (a) and District of Columbia Bar Rule XI, § 19 (f). In addition, Verra, in the course of her cooperation with Bar Counsel’s investigation, knowingly misrepresented the location and existence of the records pertaining to her work for her client in violation of Rule 8.1 (a); induced her client to make knowing misrepresentations in an affidavit in violation of Rule 8.4 (a); and her initial responses to Bar Counsel’s inquiries were “careless with the truth” in violation of Rule 8.4 (c).

Reciprocal Matters
In re Michael Bauer. Bar No. 936211. August 27, 2007. In a reciprocal matter from Illinois, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Bauer for nine months. The Supreme Court of Illinois suspended Bauer for breaching his fiduciary duty as a trustee for his brother’s children. Although Bauer was authorized to borrow from the trust, he borrowed funds at a time when he already was in default on a prior loan from the trust, and he knew that he would be unable to repay the funds.

In re Michael J. Beattie. Bar No. 450873. August 23, 2007. In a reciprocal matter from Virginia, the D.C. Court of Appeals suspended Beattie for 60 days, but stayed the suspension in favor of a 60-day period of unsupervised probation. During this period of probation Beattie shall promptly inform Bar Counsel of any disciplinary complaint during the period of probation. The Virginia board found, based upon a stipulation, that Beattie violated Virginia Rules of Professional Conduct pertaining to false statements to a tribunal, offer of evidence known to be false, failure to inform a tribunal of all material facts in an ex parte proceeding, and conduct intended to disrupt a tribunal. The findings stemmed from Beattie’s representation of a client in an employment discrimination matter before the United States District Court for the Eastern District of Virginia, Newport News Division.

In re Lawrence A. Fuller. Bar No. 477504. August 9, 2007. In a reciprocal case from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and admonished Fuller. The Supreme Court of Florida admonished Fuller for failing to perform adequate investigations and erroneously alleging that his client was a quadriplegic in 13 complaints filed under the Americans with Disabilities Act.

Informal Admonitions Issued by the Office of Bar Counsel
In re Samuel Bailey. Bar No. 384974. August 4, 2007. Bar Counsel issued Bailey an informal admonition for failing to communicate with his client, including failing to tell her that he was to be suspended in an unrelated disciplinary matter and would not attend a scheduled mediation in her case, depriving her of the knowledge that she needed to employ other counsel to protect her interests in the mediation. (Rules 1.4(a), 1.4(b), and 1.16(d)).

In re Quentin D. Driskell. Bar No. 450787. August 13, 2007. Bar Counsel issued Driskell an informal admonition for his failure to note an appeal on behalf of his client after the court provided him with instructions regarding when and how to note the appeal, failing to appear on behalf of his client at an oral argument and failing to notify the court of the reason for his failure to appear, and for his pattern of late filings. (Rules 1.1(a), 1.3(d), and 8.4(d)).

In re Andrea Merritt-Bagwell. Bar No. 434943. July 31, 2007. Bar Counsel issued Merritt-Bagwell an informal admonition for failure to respond to several discovery requests, failure to appear at a mediation session and a status conference, failure to advise the clients of a pending motion for default judgment against them, and for failure to withdraw because her physical/mental condition impaired her ability to represent the client. (Rules 1.1(b), 1.3(a), 1.3(c), 1.4(a), and 1.16(a)(2)).

In re David A. Vincent. Bar No. 455272. July 30, 2007. Bar Counsel issued Vincent an informal admonition for failing to communicate with his client and failing to determine the procedural posture of his client’s matter, while appointed to represent a client in a criminal appeal matter in Maine. (Maine Bar Rules 3.6(a)(1) and (a)(3) made applicable through D.C. Rule 8.5(b)).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. 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/index.cfm. Most Board on Professional Responsibility 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 after January 1, 1997. To obtain a copy of a recent slip opinion, visit the D.C. Court of Appeals’ Web site at www.dcappeals.gov/dccourts
/appeals/opinions_mojs.jsp
. Informal Admonitions issued by Bar Counsel are posted on the D.C. Bar Web site at www.dcbar.org/discipline/informal_ ads.cfm.