Washington Lawyer

Bar Counsel: In Dealing With Contraband, It’s a Give–and–Take Situation

From Washington Lawyer, February 2009

By Gene Shipp

Illustration by Mick Wiggins

You are sitting at your desk staring at a GLOCK 9 mm handgun, which was probably used in a homicide. Or even worse, if that is possible, maybe in front of you rests 2 kilos of cocaine. Your client looks to you for your powers of disposal. Your first thought is that this situation is not a résumé enhancer. Your second thought is, Now what do I do?

If you are an expert in professional responsibility or know someone who is, Rule 3.4(a) of the District of Columbia Rules of Professional Conduct is where you probably would start. Rule 3.4(a), regarding fairness to opposing party and counsel, states:

A lawyer shall not:

Obstruct another party’s access to evidence or alter, destroy, or conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding. Unless prohibited by law, a lawyer may receive physical evidence of any kind from the client or from another person. If the evidence received by the lawyer belongs to anyone other than the client, the lawyer shall make a good-faith effort to preserve it and to return it to the owner, subject to Rule 1.6;

Okay, so in Rule 3.4(a) there is that pesky sentence that addresses physical evidence prohibited by law. The contraband clearly is an object which inherently is illegal for you to possess, but do you: (a) destroy it; (b) tell your client to take it out of your office but to not tell you what happened to it; (c) bring it to a police station but refuse to discuss your possession of the contraband citing Rule 1.6 (confidentiality of information), which the arresting officer is sure to understand; or (d) potentially accept the object after making a telephone call to the Office of Bar Counsel?

Comment [5] of Rule 3.4 offers some guidance on this dilemma:

Because of the duty of confidentiality under Rule 1.6, the lawyer is generally forbidden to volunteer information about physical evidence received from a client without the client’s informed consent. In some cases, the Office of Bar Counsel will accept physical evidence from a lawyer and then turn it over to the appropriate persons; in those cases this procedure is usually the best means of delivering evidence to the proper authorities without disclosing the client’s confidences. However, Bar Counsel may refuse to accept evidence; thus lawyers should keep the following in mind before accepting evidence from a client, and should discuss with Bar Counsel’s office the procedures that may be employed in particular circumstances.

The Office of Bar Counsel has been accepting contraband since January 10, 1983, doing so on at least 35 occasions. From guns to drugs and a variety of objects in between, we arrange to receive the contraband outside the courthouse so an attorney is not embarrassed, or worse, arrested trying to go through security. Our office turns over contraband—as quickly as possible—to the Metropolitan Police Department and notifies the United States Attorney’s Office. Throughout the handling of the evidence, we do not alter the character of the object or wipe it clean of fingerprints. We record the transaction in our files, noting the name of the police officer who accepts it and the lost property number the police department assigns to the object. Although this rarely happens, if requested by the surrendering attorney, we will confirm our handling of the object. However, Bar Counsel’s policy is not to reveal the identity of the surrendering attorney.

This surrendering process has several benefits: It prevents the attorney from getting involved in concealing or counseling the destruction of the evidence or contraband. It puts the object into the proper hands of law enforcement. Finally, it protects the confidences the attorney owes his or her client.

We are the only jurisdiction in the United States that handles contraband in this manner. Having made inquiries into our process, several states are considering similar programs. In addition, the American Bar Association Center for Professional Responsibility has had Bar Counsel make a presentation on handling contraband[1] at a conference in Chicago. The District of Columbia’s geographic size lends itself to being the perfect jurisdiction for just such a program. For instance, in larger states, driving 300 miles with contraband would give us all pause. This program has worked remarkably well for us in the District because of the cooperation of law enforcement and the U.S. Attorney’s Office, and we appreciate their efforts.

So if you find yourself in a dilemma with contraband sitting on your desk, contact Deputy Bar Counsel Elizabeth A. “Betsy” Herman or myself to seek guidance. We can help you with this ethical problem.

It is the least we can do, g.

Note
[1] See Professors Lisa G. Lerman & Philip G. Schrag, Ethical Problems in the Practice of Law (2008), for an excellent book on this topic.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Anita C. Kanu. Bar No. 448528. October 30, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Kanu for two years, with reinstatement conditioned on a showing of fitness. The board further recommends that reinstatement be conditioned upon Kanu’s restitution of $7,000 in legal fees paid by one client and $6,000 by another client, with interest at the legal rate of 6 percent calculated from January 1, 2004. With regard to two clients, Kanu failed to refund fee advances and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. With regard to one client, Kanu made false or misleading statements about her services. Rules 1.16(d), 7.1, and 8.4(c).

In re David M. Payne. Bar No. 413776. November 12, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Payne by consent.

In re Steven G. Schulman. Bar No. 359304. October 24, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Schulman by consent.

In re Montgomery Blair Sibley. Bar No. 464488. November 14, 2008. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Sibley for three years, with reinstatement conditioned upon a showing of fitness to practice, as functionally equivalent reciprocal discipline. The Supreme Court of Florida suspended Sibley for three years with a fitness requirement after it found that Sibley was in contempt of court for willfully failing to pay child support, and that he repeatedly had asserted frivolous matters in court.

Reciprocal Matters
In re Peter R. Maignan. Bar No. 461974. November 18, 2008. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and indefinitely suspend Maignan, with a requirement that he demonstrate fitness to practice law to be reinstated, and the right to apply for reinstatement in the District of Columbia when he is reinstated in Maryland or in five years, whichever occurs first. The order of discipline from the Court of Appeals of Maryland was based on misconduct in two separate matters. In the first, the Maryland court found that Maignan appeared at a motions hearing for his client, a criminal defendant, and falsely represented to the court that, notwithstanding the Maryland court’s order of indefinite suspension in another disciplinary matter, he was authorized to appear in court on that date and to continue the representation until January 13, 2006. The Maryland court concluded that Maignan’s failure to advise the court that its order of indefinite suspension precluded his continued representation of the defendant, coupled with his appearance on behalf of the defendant and his assertion that he could continue the representation until January 13, 2006, violated Maryland Rules of Professional Conduct pertaining to false statement of fact to a tribunal, unauthorized practice of law, dishonesty, and conduct prejudicial to the administration of justice. In the second matter, the Maryland court found that Maignan failed to deposit a $4,000 retainer into his trust account, and then submitted falsified documents related to the representation to disciplinary authorities. The Maryland court concluded that Maignan violated Maryland rules pertaining to competence, failure to safekeep client property, and conduct prejudicial to the administration of justice.

In re Oscar W. Weekes Jr. Bar No. 446257. October 31, 2008. In a reciprocal matter from Massachusetts, the Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Weekes for five years with a fitness requirement as functionally equivalent reciprocal discipline. The Supreme Judicial Court for Suffolk County, Commonwealth of Massachusetts, indefinitely suspended Weekes. While employed as assistant general counsel for a corporation, Weekes caused more than $26,000 in checks to be drawn from his employer’s account, ostensibly as payment to companies that had rendered services to his employer. However, the checks were, in fact, used by Weekes to pay rent for his personal apartment and a vacation rental in Rhode Island.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Brian O. Godette. Bar No. 433283. October 23, 2008. The D.C. Court of Appeals adopted the recommendation of the Board on Professional Responsibility on remand from the court and suspended Godette for 30 days, with reinstatement conditioned upon Godette demonstrating that he has fully responded to the underlying ethical complaint, as directed by the board, and has completed six hours of continuing legal education courses on ethics and professional responsibility. However, if Godette fails to fulfill both conditions within 90 days from the date of the opinion, then from that date onward he shall be eligible for reinstatement only upon making additional showing of fitness to resume the practice of law. Godette failed to respond to a lawful demand for information from a disciplinary authority and failed to comply with an order of the board. Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re Robert E. Mittendorff. Bar No. 43919. October 16, 2008. The D.C. Court of Appeals disbarred Mittendorff by consent, effective forthwith.

In re Steven G. Schulman. Bar No. 359304. November 20, 2008. The D.C. Court of Appeals disbarred Schulman by consent, effective forthwith.

In re Michael J. Wing. Bar No. 477728. October 16, 2008. The D.C. Court of Appeals disbarred Wing by consent, effective forthwith.

In re Ben J. Zander. Bar No. 436167. October 23, 2008. The D.C. Court of Appeals disbarred Zander. The Supreme Court of New Jersey disbarred Zander based on a criminal conviction wherein Zander entered a guilty plea in the United States District Court for the District of New Jersey for acting as an accessory after the fact to mail fraud, in violation of 18 U.S.C. § 3. This felony conviction related to Zander’s involvement in a scheme to defraud health care recipients of $24 million in insurance coverage while employed as in-house counsel for a health plan administrator.

Reciprocal Matters
In re Ana L. Avendano. Bar No. 464900. October 30, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals suspended Avendano for 90 days as identical reciprocal discipline, nunc pro tunc to February 19, 2008. The Court of Appeals of Maryland suspended Avendano for 90 days by consent based on a joint petition wherein Avendano agreed that if a hearing were held, sufficient evidence could be produced to sustain the allegations of violations of Maryland Rules of Professional Conduct pertaining to diligence, communication, safekeeping property, declining or terminating representation, responsibilities regarding nonlawyer assistants, and Bar admission and disciplinary matters. In addition, Avendano made restitution in the amount of $1,330 for legal fees and an Immigration and Naturalization Service filing fee paid by the client.

In re Yalonda M. Douglas. Bar No. 476223. October 23, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals disbarred Douglas as reciprocal discipline. The Maryland Court of Appeals disbarred Douglas by consent.

In re Lisa C. Gerideau. Bar No. 445402. November 26, 2008. In a reciprocal matter from Pennsylvania, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Gerideau.

In re Marilla Lane Ross. Bar No. 413676. October 23, 2008. In a reciprocal matter from California, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Ross for two years with fitness, stayed in favor of a 30-day suspension or until the California Court grants Ross’ motion to terminate the suspension under Rule 205, whichever is longer. Ross shall take and pass the Multistate Professional Responsibility Exam as conditioned by California. If Ross remains suspended for two or more years in California, she shall be required to prove fitness as a condition for reinstatement. The Supreme Court of California suspended Ross based on her plea of nolo contendere to a violation of California Penal Code Section 148, subdivision (a)(1) (resisting and obstructing an officer).

In re Ephraim C. Ugwuonye. Bar No. 474318. October 30, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Ugwuonye for 90 days.

In re Aaron D. Weinrauch. Bar No. 420618. November 26, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Weinrauch.

In re Rex B. Wingerter. Bar No. 411787. October 23, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Wingerter. The Court of Appeals of Maryland disbarred Wingerter based on a criminal conviction wherein he pleaded guilty in the United States District Court for the Eastern District of Virginia to misprision of a felony, in violation of 18 U.S.C. § 4. Specifically, Wingerter “took at least two steps to conceal the crime” of immigration fraud.

Interim Suspensions Taken by the District of Columbia Court of Appeals
In re Douglas M. Borthwick. Bar No. 451764. November 10, 2008. Borthwick was suspended on an interim basis based upon discipline imposed in California.

In re Peter J. Cinquegrani. Bar No. 396732. November 12, 2008. Cinquegrani was suspended on an interim basis based upon discipline imposed in New York.

In re Peter Daniel Farris. Bar No. 950030. November 14, 2008. Farris was suspended on an interim basis based upon discipline imposed in Maryland.

In re Frank J. Hancock. Bar No. 961151. November 10, 2008. Hancock was suspended on an interim basis based upon discipline imposed in New York.

In re Jennifer J. Illingworth. Bar No. 478598. November 10, 2008. Illingworth was suspended on an interim basis based upon her failure to respond to a board order.

In re Peter H. Jacoby. Bar No. 285692. October 29, 2008. Jacoby was suspended on an interim basis based upon his conviction of a crime in the Circuit Court of the City of Alexandria, Virginia.

In re Charles E. McClain Sr. Bar No. 439941. October 7, 2008. McClain was suspended on an interim basis based upon discipline imposed in Maryland.

In re Kimberly A. Neeb. Bar No. 449075. November 12, 2008. Neeb was suspended on an interim basis based upon discipline imposed in Pennsylvania.

In re David M. Payne. Bar No. 413776. October 7, 2008. Payne was suspended on an interim basis based upon discipline imposed in New Jersey.

Disciplinary Actions Taken by Other Jurisdictions
In accordance with D.C. Bar Rule XI, § 11(c), the D.C Court of Appeals has ordered public notice of the following nonsuspensory and nonprobationary disciplinary sanctions imposed on D.C. attorneys by other jurisdictions. To obtain copies of these decisions, visit www.dcbar.org/discipline and search by individual names.

In re Valeriano Diviacchi. Bar No. 449208. On October 16, 2007, the Supreme Judicial Court of Maine publicly reprimanded Diviacchi.

In re Rebecca L. Marquez. Bar No. 444762. On June 19, 2008, the Disciplinary Board of the Virginia State Bar publicly reprimanded Marquez.

In re Helena Daphne Mizrahi. Bar No. 425775. On July 15, 2008, the Fourth District Committee, Section II, of the Virginia State Bar publicly reprimanded Mizrahi with a continuing legal education requirement.

Informal Admonitions Issued by the Office of Bar Counsel
In re David E. Fox. Bar No. 165258. October 24, 2008. Bar Counsel issued Fox an informal admonition for failing to keep a third-party medical provider’s disputed funds in his trust account until the dispute was resolved, while representing clients in a personal injury matter. Rule 1.15(c).

In re Lloyd D. Iglehart. Bar No. 392621. September 19, 2008. Bar Counsel issued Iglehart an informal admonition for failing to provide a client in a worker’s compensation matter a writing setting forth the rate or basis of the legal fee. Rule 1.5(b).

In re Laura E. Jordan. Bar No. 416707. October 24, 2008. Bar Counsel issued Jordan an informal admonition for failing to file her client’s civil complaint, in connection with an administrative action, in federal court before the statutory period had expired. Rules 1.1(a), 1.1(b), and 1.3(c).

In re Ronnie Thaxton. Bar No. 448815. November 3, 2008. Bar Counsel issued Thaxton an informal admonition for assisting an attorney, who was not a member of the D.C. Bar, in the unauthorized practice of law in the District of Columbia while jointly representing a client in an interfamily dispute. Rule 5.5(b).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and 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. Most board 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 since August 1998. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/internet/opinionlocator.jsf.