Washington Lawyer

Bar Counsel: Avoiding Disciplinary Traps: Three Tips From Bar Counsel

From Washington Lawyer, February 2005

By Joyce E. Peters

Illustration by Mick Wiggins  “Would you tell me, please, which way I ought to go from here?”
     “That depends a good deal on where you want to get to,” said the Cat.
     “I don’t much care where—” said Alice.
     “Then it doesn’t matter which way you go,” said the Cat.
     “—so long as I get somewhere,” Alice added as an explanation.
     “Oh, you’re sure to do that,” said the Cat, “if you only walk long enough.”[1]

Alice, not sure which direction to go in her travels through Wonderland, asks the Cheshire Cat for assistance. Though technically correct for directions to “somewhere,” his advice—just keep wandering around until you get there—simply isn’t helpful. But Alice’s question also showed her ignorance and wasn’t very specific, so she probably couldn’t have expected much help from the smiling cat.

In contrast, when Bar Counsel initiates an investigation, no lawyer wants to be lost in the disciplinary system. Simply “wandering around” until a disciplinary matter is resolved is not a solution, unless the lawyer is prepared to put his or her law license at risk. Yet many lawyers licensed in the District of Columbia are not sufficiently familiar with the disciplinary system to know how to respond or what to expect. This is not surprising when the number of disciplinary complaints is compared to the number of lawyers licensed here.

Only a small number of lawyers comes into contact with the Office of Bar Counsel each year. As of October 2004, the D.C. Bar had nearly 79,000 members, including more than 56,000 active members and nearly 42,000 actively practicing in the Washington metropolitan area.[2] The Office of Bar Counsel receives about 1,500 complaints each year and actually investigates only about a third of them, or about 450 to 600 complaints.[3] Some lawyers are the subject of multiple complaints, so the number of D.C. lawyers actually confronted by Bar Counsel for the first time each year is usually less than 1 percent.

Nonetheless, getting a letter from Bar Counsel can be an alarming event, and even more alarming when the process and consequences are unknown. The disciplinary system in the District of Columbia is not complicated, but there are some potholes and minefields that can change the course of a disciplinary proceeding to the detriment of the lawyer. This column will address three aspects of the disciplinary system and provide some tips to assist lawyers in avoiding some of the more common hazards.

1. Respond promptly, responsively, and thoughtfully to any inquiry from Bar Counsel in an original matter.
When Bar Counsel forwards a complaint and asks for the lawyer’s response, Bar Counsel is seeking a substantive response to share with the complainant. Bar Counsel is looking for factual details, copies of retainer agreements, and specific information that addresses the concerns expressed in the complaint. A nonresponsive reply or no response from the lawyer does nothing to resolve the outstanding questions about the lawyer’s conduct and nothing to satisfy the complainant’s concerns. Even worse, no response from the lawyer can itself lead to disciplinary action, as a lawyer is required by Rule 8.1(b) of the District of Columbia Rules of Professional Conduct “to respond reasonably to a lawful demand for information from … [a] disciplinary
authority. . . .”[4]

Some lawyers, however, when first confronted with a letter from Bar Counsel asking for an explanation of their conduct, may panic, toss the letter aside in denial, and fail to react in a reasonable and responsible manner, hoping that Bar Counsel will simply go away. This is rather like Alice’s unfocused wandering. But Bar Counsel will not simply go away, as Bar Counsel is required by D.C. Bar Rule XI, section 6(a), “to investigate all matters involving alleged misconduct by an attorney subject to the disciplinary jurisdiction of this Court [that is, the District of Columbia Court of Appeals] which may come to the attention of Bar Counsel or the Board [on Professional Responsibility] from any source whatsoever, where the apparent facts, if true, may warrant discipline.” A timely, thorough response from the lawyer may result in the dismissal of the matter, if there has been no ethical misconduct or if Bar Counsel concludes that there is insufficient evidence of misconduct. In fact, each year only about 15 percent of the cases investigated by Bar Counsel result in formal charges or an informal admonition against the attorney. This suggests that a timely comprehensive response to Bar Counsel often can bring a disciplinary matter to a rapid end.

In responding to Bar Counsel’s letter, the lawyer should also recognize that the response will normally be shared with the complainant. In most cases the complainant will be the client, but this is not always true. Some complaints are made by opposing counsel, some involve referrals from judges, and some may arise from media reports or other information brought to the attention of Bar Counsel. Understanding who has made the complaint is important. If the complaint will be shared with a client, the lawyer needs to think about what is being said. Accusatory or intemperate language adds little to resolve a client’s concerns, and may inflame an already tense situation.

If the complainant is not the client, the lawyer needs to consider who may see the response and whether there may be ethical considerations in responding. Although Rule 1.6(d)(3) (confidentiality of information) of the District of Columbia Rules of Professional Conduct permits a lawyer to use or reveal client confidences or secrets “[t]o the extent reasonably necessary to establish a defense to a … disciplinary charge … based upon conduct in which the client was involved,” this provision requires the exercise of reason and does not permit the lawyer to make blanket disclosures. In fact, even Rule 8.1(b) recognizes that the duty to respond to inquiries by Bar Counsel is subject to the disclosure limitations in Rule 1.6. Thus, the lawyer needs to consider who will view the response and what the consequences of that viewing might be. Once the lawyer responds to the complaint, that response becomes a matter of record in the investigative file, and efforts by the lawyer later to change the “facts” can raise questions about the lawyer’s credibility.

2. Take immediate steps to mitigate any violation that may have occurred to lessen the effect of the misconduct.
If the disciplinary complaint concerns the handling of client funds or is the result of an overdraft notice on a lawyer’s trust account sent by the lawyer’s bank directly to Bar Counsel, no lawyer should downplay the seriousness of such an inquiry. Misuse or misappropriation of client funds, commingling of client funds, and dishonesty in the handling of client funds are among the most serious ethical breaches. However, prompt action by the lawyer in response to Bar Counsel’s letter may help to mitigate the violation and may affect the outcome of the disciplinary matter. For example, if there has been a bookkeeping or bank error, the lawyer may be able to find the error quickly and fix it. If funds should have been disbursed to a third party but were not, the lawyer may be able to make that payment. If the client is seeking the return of documents or the client file, the lawyer can honor the client’s request. These actions cannot undo what has occurred in the past, and Bar Counsel may not dismiss a disciplinary matter simply because a client no longer wants to pursue it. But the lawyer’s prompt action upon discovery of a problem may show good faith and change the character of the ethical infraction.[5]

If the allegation is misappropriation of client funds, it is significant whether the misappropriation is intentional or reckless, or merely negligent. The sanction for intentional or reckless misappropriation is disbarment,[6] whereas negligent misappropriation normally results in a six–month suspension.[7] What actions the lawyer took concerning the funds obviously are important in determining the nature of the misconduct and hence the appropriate sanction.

In these money cases Bar Counsel will likely subpoena bank records, client financial records, and other client records as part of the investigation, so the lawyer should be prepared to produce these records. Bar Counsel has this authority under D.C. Bar Rule XI, section 18(a), which permits Bar Counsel to compel “the production of pertinent books, papers, documents, and other tangible objects at the time and place designated in the subpoena.” A lawyer who wishes to challenge the validity of such a subpoena may do so by filing a motion to quash under D.C. Bar Rule XI, section 18(c), which will be referred to a hearing committee for a determination, and subsequently may be reviewed by the Board on Professional Responsibility and the court as part of the review of the case.

Total failure to respond to a subpoena, however, can result in a motion to compel filed with the court and sanctions ordered by the court. Moreover, a lawyer unable to produce a written retainer agreement (if one is required)[8] or required financial records concerning the handling of client funds[9] may be subject to discipline for those failures even if the original complaint has no merit. Bar Counsel is not constrained by the nature of the original complaint in investigating a disciplinary matter, and Bar Counsel’s investigation may take a turn and change focus if other potential ethical misconduct is discovered during an investigation. Thus, the lawyer should take Bar Counsel’s inquiry seriously, try to mitigate any prior misconduct if possible, assemble records and files needed to respond, and plan a defense, rather than simply react to each step in the disciplinary procedure.

3. If disciplined in another state, report the discipline, respond to the court’s show–cause order, and participate in the reciprocal matter to avoid waiver of procedural and sanction issues.
More than 80 percent of the members of the D.C. Bar are also licensed elsewhere; far more lawyers are admitted to practice in the District of Columbia by motion than by examination. Many D.C. Bar members practice only in other states where they are licensed and may be disciplined by a sister disciplinary authority. When this occurs, D.C. Bar Rule XI, section 11(b), requires the lawyer to “promptly inform Bar Counsel of such action.”

Most lawyers report such sister state discipline to Bar Counsel. Bar Counsel, however, does not rely solely on voluntary reporting to determine if lawyers licensed in the District of Columbia have been disciplined elsewhere. Rather, Bar Counsel conducts semiannual comparisons of the D.C. Bar membership lists with the disciplinary databank maintained by the American Bar Association to which states report discipline that they have imposed. This past year during one of these comparisons, the Office of Bar Counsel found 46 cases in which discipline by another state had not been reported. There is no statute of limitations in disciplinary matters in the District of Columbia, so these reciprocal cases are initiated when discovered, regardless of how old they may be. The difficulty for the lawyer, however, is that if the lawyer has not reported the discipline by another state promptly to Bar Counsel, the presumption favoring identical reciprocal discipline with full nunc pro tunc treatment will be lost if a suspensory sanction was imposed by the original disciplining court.

When discipline imposed by another disciplining court is reported to the court, the court issues an order directing (1) Bar Counsel to state its position on reciprocal discipline, (2) the lawyer to show cause whether reciprocal discipline should be imposed, and (3) the board to consider whether reciprocal discipline is appropriate.[10] The court’s order may also suspend the lawyer from practice in the District of Columbia, if the lawyer was suspended or disbarred in the other jurisdiction, and direct the lawyer to file a D.C. Bar Rule XI, section 14(g), affidavit.

The reciprocal discipline process is a more summary process than that used in original cases, and ordinarily will not include a hearing in the District of Columbia.[11] In part this is due to the fact that the reciprocal process gives comity to the action by the other jurisdiction;[12] and unless there is a due process issue, a lack of proof, or a question about whether the conduct would be misconduct in the District of Columbia, the finding of misconduct by the sister jurisdiction conclusively establishes the misconduct here.[13] Consequently, there is no need to retry the underlying matter as part of the reciprocal proceeding.

But the lawyer may have concerns about the other disciplinary proceeding or may want to contest the nature of the sanction imposed there. In considering the case, the board will review the action taken by the other court and determine if the sanction imposed there is within the range of sanctions that would be imposed in the District of Columbia in an original matter.[14] The board may recommend a different sanction to the court depending upon the nature of the misconduct, and may decrease or significantly increase it if the original disciplining court’s sanction does not adequately correspond to what would be appropriate for such an offense in the District of Columbia.

If the lawyer fails to participate before the board by choosing not to respond to Bar Counsel’s statement or to the show–cause order, the lawyer loses the opportunity to challenge the other court’s action and to be heard on the sanction. Moreover, the lawyer may not later challenge the board’s action for the first time before the court. The court has repeatedly held that the lawyer’s failure to participate before the board waives issues concerning procedural matters and the appropriate sanction.[15] Thus, it is critical in a reciprocal proceeding for the lawyer to participate and respond to the court’s orders to preserve issues for consideration by the court.

In addition, if the disciplinary matter in the sister state was serious and involved a suspension or disbarment, the court will temporarily suspend the lawyer pending resolution of the reciprocal matter and will direct the lawyer to file an affidavit pursuant to D.C. Bar Rule XI, section 14(g). The purpose for this affidavit, among other things, is to give the court assurance that the lawyer has properly notified clients and others of the lawyer’s suspension, to advise the court where the lawyer is also licensed, and to ensure that both the court and Bar Counsel have a valid address for the suspended lawyer. The law concerning this affidavit is complex, and there are very specific requirements for the form and substance of this affidavit.[16] Most importantly, however, the failure to file this affidavit has the effect of delaying the start date of any suspension or disbarment for purposes of reinstatement. Instead of getting the benefit of nunc pro tunc treatment, the lawyer may lose it by not complying with this requirement imposed by the court. Any lawyer facing a possible suspension but wanting to be reinstated promptly to practice needs to understand how these affidavits work.

These three tips—respond, mitigate, and participate—are important to any lawyer facing possible discipline in the District of Columbia. Reading the court’s and board’s rules provides a roadmap of the process and illuminates what may occur. With that knowledge, unlike Alice, the lawyer won’t be wandering in the land of discipline.

Notes
[1] Lewis Carroll, Alice’s Adventures in Wonderland, ch. VI (Macmillan 1865).
[2] The D.C. Bar Member Service Center maintains statistical information about the composition of the Bar’s membership and updates it each month.
[3] The Office of Bar Counsel maintains statistical records about the number of complaints it receives, how many are investigated, and what sort of disposition results.
[4] Failure to respond to Bar Counsel may also violate Rule 8.4(d), as well as D.C. Bar Rule XI, section 2(b)(4), if Bar Counsel has sought an order to compel from the board (for failure to respond to the board’s order). In re Beller, 802 A.2d 340 (D.C. 2002) (30–day suspension for failure to respond); In re Beller, 841 A.2d 768 (D.C. 2004) (120–day suspension with requirements that lawyer comply with Bar Counsel’s requests for information and establish her fitness to practice).
[5] If the ethical violation is minor, mitigation undertaken by the lawyer could enable the lawyer to avoid the lengthy formal disciplinary process in favor of an informal admonition from Bar Counsel or even diversion (if the requirements of D.C. Bar Rule XI, section 8.1, can be met).
[6] In re Addams, 579 A.2d 190 (D.C. 1990) (en banc).
[7] In re Anderson, 778 A.2d 330 (D.C. 2001).
[8] Written retainer agreements are required when the lawyer has not regularly represented the client, the fee is contingent, or there is to be a division of the fee with another lawyer. See D.C. Rules of Prof’l Conduct R. 1.5.
[9] In two cases the court has found violations of Rule 1.15(a) and D.C. Bar Rule XI, section 19(f), based on the lawyer’s failure to maintain complete records of funds held for clients and third parties. In re Thomas-Pinkney, 840 A.2d 700, 701 n.1 (D.C. 2004); In re Clower, 831 A.2d 1030 (D.C. 2003).
[10] This process varies slightly from D.C. Bar Rule XI, section 11(d), which directs only the lawyer to show cause, without any preliminary input from Bar Counsel. Board Rule 8.1, however, directs Bar Counsel to file a statement first, and the court has recognized this role of Bar Counsel in the process and noted that it gives the respondent an advantage in preparing a response. In re Harper, 785 A.2d 311, 315 n.5 (D.C. 2001). The District of Columbia Bar’s Disciplinary System Study Committee is currently examining this process to see if it can be streamlined.
[11] A case may be referred to a hearing committee for a recommendation on an appropriate sanction under D.C. Bar Rule XI, section 11(g)(2), but this happens only rarely.
[12] In re Belli, 766 A.2d 526, 527 (D.C. 2001) (per curiam); In re Velasquez, 507 A.2d 145, 147 (D.C. 1986).
[13] D.C. Bar Rule XI, § 11(c).
[14] In re Krouner, 748 A.2d 924, 928 (D.C. 2000); In re Garner, 576 A.2d 1356, 1357 (D.C. 1990) (describing the two-step process used in assessing the sanction). In considering sanctions generally, the board reviews a number of relevant factors: the nature of the violation; mitigating and aggravating circumstances; the need to protect the public, the courts, and the legal profession; the lawyer’s moral fitness; the frequency of the misconduct; prior discipline; and any other special mitigating factors (such as cooperation with Bar Counsel, remorse, illness, or stress). In re Slattery, 767 A.2d 203, 214–15 (D.C. 2001); In re Goffe, 641 A.2d 458, 464 (D.C. 1994) (per curiam); In re Steele, 630 A.2d 196, 199 (D.C. 1993). The board examines comparable cases to evaluate the sanctions imposed. The board’s expertise in disciplinary matters is entitled to considerable deference. In re Haupt, 422 A.2d 768, 771 (D.C. 1980) (per curiam). Ultimately, the court has the final say in the discipline to be imposed, but it has recognized that the purpose of disciplinary sanctions is “to serve the public and professional interests we have identified, rather than to visit punishment upon an attorney.” In re Reback & Parsons, 513 A.2d 226, 231 (D.C. 1986) (en banc). This is equally true in reciprocal matters.
[15] “We have repeatedly held that ‘an attorney waives the right to contest the imposition of reciprocal discipline when he or she does not oppose the proposed discipline before the Board or fails to respond to the court’s show cause order.’ In re Holdmann, 834 A.2d 887, 889 (D.C. 2003); In re Harper, 785 A.2d 311, 316 (D.C. 2001).” In re Barneys, No. 02-BG-1218, slip op. at 5 (D.C. Nov. 24, 2004). The attorney can avoid this waiver only if he or she can meet the demanding miscarriage–of–justice standard. Id. at 6. Barneys, however, was unable to do so.
[16] See D.C. Bar Rule XI, § 14; Board Rules 8.6, 9.10. See also Bar Counsel’s column in the October 2004 issue of Washington Lawyer, also available online at www.dcbar.org, for an in–depth discussion of the various affidavit requirements.

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Mohamed Alamgir. Bar No. 447715. November 5, 2004. The board recommends that the court disbar Alamgir by consent.

In re Steven Angel. Bar No. 405417. November 9, 2004. In a reciprocal matter from Oklahoma, the board recommends that the court impose functionally identical discipline and publicly censure Angel. The Oklahoma Supreme Court had publicly reprimanded Angel for failing to respond to a defendant’s motion for summary judgment while representing two clients in a commercial matter, in violation of Rule 1.3 of the Oklahoma Rules of Professional Conduct, and had ordered him to pay $409 in costs for the disciplinary proceeding.

In re Dennis A. Baird. Bar No. 377971. November 10, 2004. The board directed Bar Counsel to issue Baird an informal admonition for categorizing a legal fee, that Baird paid to an outside counsel, as an expense under a contingency fee agreement and failing to notify a third party with an interest in settlement funds, in violation of Rules 1.5(a) and 1.15(b), both of which violations occurred while Baird was representing a client in a personal injury matter.

In re Terence A. Coles. Bar No. 459287. November 30, 2004. The board recommends that the court disbar Coles. Coles was convicted in the United States District Court for the District of Columbia of one count of conspiracy to commit fraud in the first degree and aiding and abetting, in violation of D.C. Code §§ 22-1805 and 22-1805(a); two counts of fraud in the first degree, in violation of D.C. Code §§ 22-1805, 22-3221(a), and 22-3222(a)(1); two counts of bribery, in violation of 18 U.S.C. § 201(b)(2)(A) and (C); and two felony counts of receipt of stolen property, in violation of D.C. Code §§ 22-3232(a) and 22-3232(c)(1). The board concluded that Coles’s multiple convictions involve moral turpitude per se, for which disbarment is mandatory under D.C. Code §§ 11-2503(a) (2001).

In re Stuart E. Hendin. Bar No. 424723. October 20, 2004. In a reciprocal matter from New York, the board recommends that the court impose identical reciprocal discipline and disbar Hendin. The New York State Supreme Court, Appellate Division, Third Judicial Department, disbarred Hendin based on his resignation from the Law Society of Upper Canada, following findings that he had engaged in several acts of misappropriation of client funds. In the New York proceeding Hendin admitted to substantial misappropriation of client funds.

In re George E. Kersey. Bar No. 344499. October 25, 2004. In a reciprocal matter from New Hampshire, the board recommends the court impose identical reciprocal discipline and disbar Kersey. The Supreme Court of New Hampshire disbarred Kersey for knowingly disobeying its orders to stop practicing law and hand over his files and for continuing to practice law while suspended, in violation of Rules 3.4(c) and 5.5(a) of the New Hampshire Rules of Professional Conduct.

In re Mark A. Key. Bar No. 458725. November 12, 2004. In a reciprocal matter from North Carolina, the board recommends that the court impose identical reciprocal discipline and suspend Key for two years, stayed for three years and conditioned on his not being held by the North Carolina State Bar (NCSB) to be in violation of the terms of its disciplinary order. The NCSB suspended Key by consent for two years, but stayed the sanction for three years with conditions. Key was convicted of assault on a female, a misdemeanor, in violation of North Carolina General Statute § 14-33(c)(2). Key violated Rules 1.18 and 8.4(b) of the North Carolina Rules of Professional Conduct.

In re David F. Luvara. Bar No. 371001. November 29, 2004. The board recommends that the court disbar Luvara. Luvara was convicted in the Court of Common Pleas of Philadelphia County, Pennsylvania, of criminal conspiracy, intimidation of witnesses or victims, and obstructing the administration of law or other government function. The board concluded that Luvara’s conviction for intimidation of a witness or victim involves moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11 2503(a) (2001).

In re John L. McGann. Bar No. 114561. November 9, 2004. In a reciprocal matter from Virginia, the board recommends that the court impose nonidentical reciprocal discipline and suspend McGann for 30 days. The Virginia State Bar Disciplinary Board publicly reprimanded McGann, with the requirement that he take six hours of continuing legal education classes in criminal defense and two hours of continuing legal education in legal ethics. The Virginia discipline was based on a determination that McGann had represented five criminal defendants facing prosecution arising out of the same matter, even though the clients’ interests were in conflict. McGann’s conduct violated Rules 1.3(a), 1.4(a), and 1.7(b)(2) and (3).

In re Richard J. Mudd. Bar No. 114686. November 10, 2004. The board directed Bar Counsel to informally admonish Mudd. While representing a client in a probate matter, Mudd failed to communicate, to withdraw after termination of the representation, and to protect the client’s interest by failing to advise her whether she had received the entire case file at the termination of the representation, in violation of Rules 1.4(a), 1.16(a), and 1.16(d).

In re Thomas T. Prousalis Jr. Bar No. 385481. November 17, 2004. The board recommends that the court disbar Prousalis by consent.

In re Reginald J. Rogers. Bar No. 440390. November 30, 2004. The board recommends that the court disbar Rogers and order him, as a condition of reinstatement, to surrender his client’s papers and property, including $30,000 in savings bonds he claimed are still in his custody, and to make full restitution with interest for all monies and property that he misappropriated from his client. The hearing committee found that Rogers stole at least $261,656.99. Rogers, while retained to manage the finances of an elderly and infirm widow, intentionally misappropriated her property; did not keep or maintain her complete client records; committed theft of property of substantial value; engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation; intentionally prejudiced and damaged his client; failed to act with reasonable promptness; failed to communicate the rate or basis of his fee in writing; and failed to take timely steps to protect his client’s interest upon termination of the representation, in violation of Rules 1.3(b)(2), 1.3(c), 1.4(a), 1.5(b), 1.15(a), 1.16(d), 8.4(b), and 8.4(c).

In re Gerald S. Susman. Bar No. 12799. October 25, 2004. The court remanded this matter at the board’s request, for the limited purpose of reconsidering the effective date of Susman’s disbarment. The board’s new report strikes the concluding sentence in its initial report and substitutes the following: “We further recommend that Respondent be afforded an opportunity to correct the omissions in his § 14(g) affidavit, filed on June 7, 2001, by filing a supplemental affidavit within ten days from the entry of this Report. If Respondent timely files a supplemental affidavit that fully complies with § 14(g), we will recommend that his disbarment period be deemed to run nunc pro tunc from June 7, 2001, for the purposes of reinstatement. If Respondent fails to timely file a supplemental affidavit or files an insufficient affidavit, we recommend that the disbarment period run from the date Respondent complies with § 14(g).”

In re Cheryl P. Vural. Bar No. 417259. November 3, 2004. In a reciprocal matter from Maryland, the board recommends that the court impose functionally identical discipline and suspend Vural for one year and 60 days, provided that after the first 60 days the remainder of the suspension may be stayed if Vural desires to resume practicing law, and notifies Bar Counsel in advance, at which point Bar Counsel may require her to identify another attorney to monitor her practice. The Maryland Court of Appeals, upon consent, suspended Vural from the practice of law for 60 days and directed her then to provide Maryland Bar Counsel with verification that she had asked to be placed on retired/inactive status with the Maryland Client Protection Fund, and if she seeks to resume active status within one year from the date she is placed on retired/inactive status, to notify Maryland Bar Counsel in advance of her intention, at which time Maryland Bar Counsel may require Vural to identify another attorney who will monitor her practice. Following entry of a divorce judgment on behalf of her client, Vural failed to pursue with diligence her client’s interest in obtaining a qualified domestic relations order authorizing the transfer of a portion of the client’s ex spouse’s interest in his retirement plans to the client.

In re H. Allen Whitehead. Bar No. 427940. November 19, 2004. The board recommends that the court disbar Whitehead based on his consent.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Bradford J. Barneys. Bar No. 440281. November 24, 2004. In a reciprocal matter from Maryland, the court imposed identical reciprocal discipline and disbarred Barneys. The Maryland Court of Appeals disbarred Barneys for engaging in the practice of law in Maryland during 1997 and 1998 without being admitted to the Maryland Bar and entering his appearance as counsel and otherwise representing clients in at least five cases in the District Court of Maryland while his Maryland Bar application was pending. The Maryland court found that Barneys violated Maryland Rule 16-701(k); the Business Occupations and Professions Article of Maryland Code §§ 10-601 and 10-602; and Rules 4.1, 5.5(a), 7.5(a)–(b) and (d), 8.1(a), and 8.4(b)–(d) of the Maryland Rules of Professional Conduct.

In re Michael R. Calabrese. Bar No. 366774. October 7, 2004. The court disbarred Calabrese by consent.

In re Murray L. Deutchman. Bar No. 161729. November 24, 2004. In a reciprocal matter from Maryland, the court imposed identical reciprocal discipline and disbarred Deutchman. The Maryland Court of Appeals disbarred Deutchman based on a joint petition for disbarment by consent. In the joint petition Deutchman acknowledged that he was presently under investigation for conversion of funds of a client in connection with a loan allegedly made on behalf of the client to another individual, he converted the funds to his own use, and his conduct violated Rules 1.15, 8.4(c), and 8.4(d) of the Maryland Rules of Professional Conduct and Maryland Rule 16-609.

In re Alvin Gilbert Douglass. Bar No. 259549. October 7, 2004. The court suspended Douglass for 90 days. Douglass failed to provide competent representation to his client, to represent his client with the appropriate skill and care commensurate to the matter, to represent his client zealously and diligently within the bounds of the law, to act with reasonable promptness, to explain adequately the terms of a transaction whereby he acquired a pecuniary interest adverse to his client’s interest, and to surrender papers and property to which his client was entitled at the termination of the representation. Specifically, Douglass did not take action to prosecute his client’s personal injury claim against a cruise line, but rather allowed it to languish for a period of two years, failed to discuss with his client alternatives regarding medical providers and medical treatment, never provided his theory of liability or settlement demand, and did not research the applicable statute of limitations. In addition, Douglass refused to return the client file unless the client agreed to sign a release and a note confessing liability for attorney’s fees. Douglass was found to have violated Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.8(a), and 1.16(d).

In re Landon G. Dowdey. Bar No. 89003. November 18, 2004. The court disbarred Dowdey. Dowdey entered a guilty plea in the United States District Court for the District of Columbia to two counts of concealment of a material fact, in violation of 18 U.S.C. § 1001 (1996), and two counts of theft of government property, in violation of 18 U.S.C. § 641 (1996). Theft of government property is a crime involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11 2503(a) (2001).

In re John C. Hardwick Jr. Bar No. 452174. October 7, 2004. In a reciprocal matter from Maryland, the court indefinitely suspended Hardwick, with the right to apply for reinstatement after he is reinstated in Maryland or after five years, whichever occurs first. If Hardwick is summarily reinstated in Maryland without either objection from Maryland Bar Counsel or a hearing, the board recommends that he be permitted to seek vacatur of the fitness requirement pursuant to Board Rule 8.7. The Maryland Court of Appeals indefinitely suspended Hardwick based on a joint petition by consent for his alleged false representations to his firm and to clients with respect to services he had claimed to have performed.

In re Steven E. Mirsky. Bar No. 947531. October 21, 2004. In a reciprocal matter from Maryland, the court imposed nonidentical discipline and suspended Mirsky for six months. The Maryland Court of Appeals had suspended Mirsky by consent for 90 days for negligent misappropriation of client funds in violation of Rules 1.3, 1.4(a), 1.4(b), 1.15(a), 1.16(d), and 8.4(b)–(d) of the Maryland Rules of Professional Conduct; Maryland Rules 16-604, 16-607, and 16-609; and Business Occupations and Professions Article of Maryland Code § 10-306 (1989).

In re Michael X. Morrell. Bar No. 62679. October 7, 2004. The court held that the board properly dismissed Morrell’s petition for reinstatement without a hearing.

In re Robert D. Powell. Bar No. 10215. October 21, 2004. In a reciprocal matter from Maryland, the court imposed identical reciprocal discipline and disbarred Powell. The Maryland Court of Appeals disbarred Powell for commingling, dishonesty, conduct prejudicial to the administration of justice, false representation of material facts, and failing to make a timely response to demands for information from Maryland Bar Counsel, in violation of Rules 1.15, 8.1(a), 8.1(b), and 8.4(d) of the Maryland Rules of Professional Conduct and Maryland Rule 16-607.

In re David Roberson. Bar No. 935114. November 4, 2004. In a reciprocal matter from Georgia, the court imposed identical reciprocal discipline and disbarred Roberson, with reinstatement conditioned on his compliance with the restitution requirement imposed by the Supreme Court of Georgia. The Georgia court disbarred Roberson for multiple violations of Georgia’s Standards of Conduct, including dishonesty, failure to deliver promptly and account for trust funds (misappropriation), conflicts of interest, and charging an excessive fee, all of which arose from representation of clients in a medical malpractice case. The court accepted the board’s finding that Roberson’s violations of the Georgia Standards of Conduct constituted violations of the D.C. Rules of Professional Conduct, namely, Rules 1.3, 1.5(a), 1.5(c), 1.7(b)(2), 1.7(b)(4), 1.15(a), 1.15(b), and 8.4(c).

In re Nathaniel Sims. Bar No. 444853. November 10, 2004. The court granted Bar Counsel’s motion to vacate the court’s order to remand this matter, found that Sims’s criminal conviction for a violation of 18 U.S.C. §§ 208 and 216(a)(1) constituted a crime of moral turpitude on the facts of the case, and disbarred him. Sims was convicted in the United States District Court for the District of Columbia of a misdemeanor conflict of interest. As a hearing examiner of the District of Columbia Bureau of Traffic Adjudication, Sims improperly dismissed 20 traffic tickets that affected himself and his family, in violation of Rules 8.4(b), 8.4(c), and 8.4(d). One member of the court dissented, in part, disagreeing with the panel majority’s finding that the crime involved moral turpitude on the facts and concluding that a lesser sanction was warranted.

In re John Stanton. Bar No. 168997. October 28, 2003. The court denied Stanton’s petition for reinstatement.

In re Winston W. Tsai. Bar No. 130120. October 21, 2004. In a reciprocal matter from Maryland, the court imposed functionally identical discipline and publicly censured Tsai. The Maryland Court of Appeals had reprimanded Tsai based on a joint petition for reprimand by consent for engaging in neglect, failure to provide competent representation, failure to communicate, and conduct prejudicial to the administration of justice, in violation of Rules 1.1, 1.3, 1.4, and 8.4(d) of the Maryland Rules of Professional Conduct.

Informal Admonitions Issued by the Office of Bar Counsel
In re Catherine E. Abbey. Bar No. 436925. October 26, 2004. Bar Counsel issued Abbey an informal admonition for violating Rule 1.15(b) by failing, while representing her client in a personal injury matter, to notify a third party of her receipt of settlement funds in which it had an interest.

In re Alvin S. Brown. Bar No. 263681. October 26, 2004. Bar Counsel issued Brown an informal admonition for violating Rules 1.3(c), 1.4(a), and 1.5(b), while representing clients in matters before the Internal Revenue Service. Brown failed to act with reasonable promptness, failed to keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information, and failed to communicate the rate or basis of the fee in writing.

In re Michael J. Hoare. Bar No. 206979. September 17, 2004. Bar Counsel issued Hoare an informal admonition for violating Rules 1.2(a), 1.5(a), 1.5(b), 1.16, 8.4(a), and 8.4(d) with respect to various provisions in his retainer agreement in an employment matter, including language attempting to limit the time period within which his client could file an ethical complaint, imposing an unreasonable fee, and impermissibly burdening the client’s right to determine whether to accept an offer of settlement; and for failing to state his hourly rate in writing.

In re Marc S. Zweben. Bar No. 438674. September 20, 2004. Bar Counsel issued Zweben an informal admonition for violating Rules 1.1(a), 1.1(b), and 1.3(a) while representing a minor’s estate in a personal injury matter. Zweben failed to provide competent representation and the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation, and failed to serve his client with the skill and care commensurate with that generally afforded to clients by other lawyers in similar matters and to represent his client with diligence and zeal.

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/internet
/opinionlocator.jsf
. 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.