Bar Counsel's Page: Waiting for the Disciplinary Shoe to Drop
From Washington Lawyer, July/August 2000
By Joyce E. Peters
Recently, the Washington Post published a copy of a letter dated May 22, 2000, from the executive director of the Arkansas Committee on Professional Conduct to the clerk of the Arkansas Supreme Court advising that the committee planned to initiate disbarment proceedings against President Clinton for serious misconduct in violation of Model Rules 8.4(c) and 8.4(d) of the Arkansas Model Rules of Professional Conduct. These rules state that it is professional misconduct for a lawyer to engage in conduct that involves dishonesty, fraud, deceit, or misrepresentation (8.4(c)), or conduct that seriously interferes with the administration of justice (8.4(d)). Although the letter does not provide details concerning the specific conduct charged, President Clinton must now defend his license and fitness to practice law in Arkansas before that state’s disciplinary authorities.
While the action by the Arkansas disciplinary authorities was greeted with a flurry of press activity and much speculation about the case, the fact remains that lawyers who engage in criminal or other serious misconduct often face not only charges by prosecutors in state or federal criminal courts but also charges by bar counsel in state disciplinary proceedings. The thud that occurs when bar counsel’s action is served on the attorney in such a case is simply the sound of the disciplinary shoe dropping. President Clinton’s situation obviously raises a number of interesting and potentially novel issues: how to take disciplinary action against a sitting president, what impact impeachment may have, how to show a nexus between the president’s conduct and his fitness to practice law, the appropriate level of discipline, and the extent to which discipline may be appropriate for "private" behavior. These and other issues will be litigated in Arkansas, but not here, as President Clinton is not a member of the District of Columbia Bar.
Disciplinary action against lawyer-politicians has been taken in numerous cases both here and in other jurisdictions. The president’s situation, however, provides a timely backdrop for a renewed look at the extent to which a lawyer’s private conduct may result in disciplinary action. What many lawyers may fail to appreciate is that the D.C. Rules of Professional Conduct (like those of most states) make no distinction based on where or when the misconduct occurs. They do not simply apply to misconduct that occurs in the law office or the courthouse or in the course of an attorney-client relationship. A lawyer doesn’t have to be practicing law for the rules to apply, and a disciplinary proceeding, which is quasi-criminal, may occur in addition to any criminal case that results.
The D.C. rules set standards for the profession of law against which a lawyer’s conduct is measured; they are "rules of reason" set by the District of Columbia Court of Appeals. As the court points out in paragraph 2 of the scope section introducing the rules, "The Rules presuppose a larger legal context shaping the lawyer’s role. . . . The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law." Any lawyer confronted with criminal charges for his or her personal conduct should carefully consider this larger framework and realize that the outcome of any criminal charges could have a serious impact on his or her law license when Bar counsel learns about the misconduct and the disciplinary shoe hits the floor.
The Court of Appeals’ framework for the practice of law vests responsibility for the discipline of attorneys in the court itself. As the court has pointed out, "The Bar is a noble calling." In re Shillaire, 549 A.2d 336, 337 (D.C. 1988). "High standards of honor, integrity and professional competence have been in effect for attorneys since the reign of Henry IV." In re Abrams, 689 A.2d 6, 7 (D.C. 1997) (en banc). Disciplinary sanctions are designed "not only to maintain the integrity of the profession and to protect the public and the courts, but also to deter other attorneys from engaging in similar misconduct." In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc). As even the Supreme Court of the United States has stated in connection with attorney discipline, citing to our English predecessors, " ’The question is,’ said Lord Mansfield, ’whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. . . . It is not by way of punishment; but the court[s] in such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.’ " Ex parte Wall, 107 U.S. 265, 273, 2 S. Ct. 569, 576, 27 L. Ed. 552 (1883) (emphasis added).
So what is the proper framework for measuring a lawyer’s private conduct against the Rules of Professional Conduct? Simply by using the notion of a framework suggests that there may be open spaces or areas not covered by the disciplinary rules. Should every conceivable act of misconduct, regardless of where or when it occurs, subject a lawyer to disciplinary sanctions? A "bright line" rule, while easy to enforce, frequently fails to take into account the reality of human nature. But to the extent that open spaces exist, the public is less protected and the primary goals of discipline-protection of the public, our courts, our system of jurisprudence, and our own profession-are less strongly served.
Our court has not hesitated to impose discipline for private misconduct. In In re Hadzi-Antich, 497 A.2d 1062 (D.C. 1985), the court imposed discipline on an attorney for submitting a falsified résumé to a prospective employer. In In re Terrell, DCCA No. 85-457 (Feb. 7, 1986), a case involving dishonest use of a rental car that occurred in a lawyer’s private capacity, the court imposed a suspension, noting its agreement with the decision of the Board on Professional Responsibility that "the conduct reflects adversely on [the lawyer’s] professional fitness." (Emphasis added.) Similarly, in In re Hutchinson, 518 A.2d 995 (D.C. 1986), 534 A.2d 919 (D.C. 1987) (en banc), the court imposed a one-year suspension on a lawyer who lied to the Securities and Exchange Commission in an attempt to avoid personal civil or criminal liability during an investigation of his participation in an insider trading case. In its first opinion in Hutchinson, the court noted, "Lawyers have a greater duty than ordinary citizens to be scrupulously honest at all times, for ’[h]onesty is basic to the practice of the law.’ " 518 A.2d at 1001 (citing In re Reback, 513 A.2d at 231).
Our sister jurisdictions have likewise imposed discipline in cases involving private misconduct. In one case arising in New Jersey, a lawyer feigned his own drowning death to resolve his personal conflict between meeting his obligations to his family and his strong desire to be with his paramour. In imposing a six-month suspension, the New Jersey Supreme Court stated, "Even the private conduct of attorneys may be the subject of public discipline." In re Bock, 128 N.J. 270, 607 A.2d 1307 (1992). The court in Bock went on to cite with approval an earlier New Jersey case, In re Mattera, 34 N.J. 259, 168 A.2d 38 (1961), in which the New Jersey Supreme Court had stated:
[A]ny misbehavior, private or professional, which reveals lack of the character and integrity essential for the attorney’s franchise constitute[s] a basis for discipline. The reason for this rule is not a desire to supervise the private lives of attorneys but rather that the character of a man is single and hence misconduct revealing a deficiency is not less compelling because the attorney was not wearing his professional mantle at the time. Private misconduct and professional misconduct differ only in the intensity with which they reflect upon fitness at the bar. This is not to say that a court should view in some prissy way the personal affairs of its officers, but rather that if misbehavior persuades a man of normal sensibilities that the attorney lacks capacity to discharge his professional duties with honor and integrity, the public must be protected from him.
34 N.J. at 264, 168 A.2d at 41 (citations omitted).
The issue of discipline for private conduct is a matter of great debate within the community of ethics scholars and disciplinary practitioners and was the subject of much discussion during the recent National Conference on Professional Responsibility held June 1-3 in New Orleans. During one panel discussion on reconciling personal and professional standards, David J. Luban, professor of law and philosophy at Georgetown University Law Center, pointed out that the disciplinary rules are simply the beginning and that any analysis in this area must necessarily take into account "rules of conscience," larger moral principles not specifically delineated in the rules themselves. This, in fact, is entirely consistent with the previously quoted comments by the District of Columbia Court of Appeals in describing the reach of our Rules of Professional Conduct. The difficulty in today’s multicultural, multiethnic world, however, is determining exactly what those larger moral principles might be. It is not entirely clear that they would be exactly the same for every lawyer from all societies and cultures.
In another panel, titled "Big Brother’s Watching: Discipline for Private Conduct," there was a spirited discussion when it was suggested by Barry Althoff, director of lawyer discipline and chief disciplinary counsel for the Washington State Bar Association, that there might well be "circles of sanctuary" encompassing private conduct outside the reach of the disciplinary system. Noting that the Greek legal system did not separate private conduct from public conduct, Althoff raised the question of whether the "reputation" of the bar warrants protection in cases in which failure to take disciplinary action (e.g., in cases involving domestic violence or gross nonsupport of children) might impugn the profession generally. Confidence in the bar itself apparently is a reason for discipline in Washington State. The better inquiry, however, is what the private conduct reveals about the individual lawyer and whether that conduct might be repeated in a representational setting to the detriment of the public or the profession. The key continues to be the issue of nexus.
In conclusion, lawyers need to be sensitive to what they do in their private lives and realize that the acceptance of a law license is not simply an authorization to practice law, but carries significant professional duties and moral standards with it. The Rules of Professional Conduct provide the framework. By following that framework and recognizing that the societal consequences of private misconduct may be different from the disciplinary consequences, the ethical lawyer may never hear the thump of the disciplinary shoe.
Disciplinary Actions Taken by the Board on Professional Responsibility
In re Lucy R. Edwards. May 8, 2000. The board recommends that the court disbar Edwards for misappropriating client funds, commingling entrusted funds with her own, and failing to deposit funds entrusted to her by a client into a trust account and to maintain adequate records of entrusted funds.
In re Retna M. Pullings. April 24, 2000. The board recommends that the court disbar Pullings on consent.
In re David D. Reynolds. May 8, 2000. The board recommends that the court suspend Reynolds for six months, nunc pro tunc to June 28, 1999, with the requirement that he demonstrate fitness to practice law prior to reinstatement. He was convicted in the Circuit Court of Arlington County, Virginia, of two counts of driving while intoxicated, one count of hit and run, and one count of eluding. The board concluded that Reynolds’s conduct constituted a criminal act that reflects adversely on his fitness as a lawyer and seriously interfered with the administration of justice.
In re Donald G. Richards. March 28, 2000. In a reciprocal matter from Virginia, where Richards’s license to practice law was revoked, the board recommends that the court disbar him. Richards, who admitted that he had misappropriated client funds over a period of nine years and had failed to maintain adequate records of entrusted funds, petitioned the Virginia court to surrender his license to practice law in that jurisdiction while disciplinary charges associated with his conduct were pending.
In re William E. Sumner. March 23, 2000. In a reciprocal matter from Georgia, the board recommends that the court disbar Sumner. Sumner failed to respond to probable-cause determinations and to formal complaints; pursuant to Georgia court rules, such failure was deemed an admission of the facts and violations alleged in the disciplinary matters pending against him. In those matters, Sumner was alleged to have misappropriated clients’ funds, neglected clients’ cases, and engaged in conduct involving dishonesty in connection with securities, corporate, real estate, and other matters.
In re Robert N. Vohra. April 12, 2000. The board recommends that the court suspend Vohra for 30 days, stay execution of the suspension, and place him on probation with conditions for two years. Vohra, in connection with a corporate matter, failed to represent a client competently, to abide by the client’s directives concerning the objectives of the representation, to act with zeal or reasonable promptness, and to seek the client’s lawful objectives. He also engaged in conduct involving dishonesty in connection with his representations to the client and his law partners regarding the status of the matters and caused his law firm to obtain reimbursement from the client for costs that had not been incurred. In reaching its determination, the board concluded that Vohra, who suffered from depression, had established the elements for a mitigation of sanction.
In re Randy A. Weiss. April 27, 2000. The board recommends that the court suspend Weiss for three years, with one year stayed, to be followed by two years of probation with conditions. Weiss, in his capacity as title insurance agent in numerous real estate settlements, converted over $675,000 in legal fees owed to his firm. The board concluded that he engaged in conduct involving dishonesty and criminal conduct that reflects adversely on his trustworthiness and his fitness as a lawyer.
Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re Rena V. Atkinson. April 6, 2000. In this reciprocal matter from Maryland, the court suspended Atkinson and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. The Maryland court indefinitely suspended her, with the right to reapply after the expiration of one year, for ethical violations arising from her failure to file returns for, or to pay federal and state income taxes, between 1986 and 1996.
In re Larry S. Bankston. April 13, 2000. The court disbarred Bankston on the basis of his criminal conviction in the United States District Court for the Eastern District of Louisiana. He was convicted of two felony counts of using an interstate telephone communication with the intent to promote racketeering and bribery, crimes involving moral turpitude per se.
In re Thomas E. Barlow. March 30, 2000. In a reciprocal matter from Texas, the court disbarred Barlow. Barlow resigned from the Texas Bar while disciplinary actions were pending against him charging him with, among other things, misappropriation, practicing law while suspended, and failing to represent clients diligently, to notify a client of the dismissal of a case for want of prosecution, and to cooperate with a disciplinary authority. The District of Columbia Court of Appeals previously has held that resignation while disciplinary charges are pending amounts to discipline for which a reciprocal sanction may be imposed in this jurisdiction. Following his resignation in Texas, Barlow was convicted of money laundering in the United States District Court for the Southern District of Texas.
In re James R. Boykins. March 30, 2000. The court suspended Boykins for 30 days, stayed execution of the suspension, and placed him on probation for one year with conditions. In connection with his representation of a coconservator of the estate of an adult ward of the court, Boykins failed to provide competent representation, to represent his client with skill and care commensurate with that offered by other lawyers in similar matters, to represent the client zealously, to act with reasonable promptness, and to provide written notice of the rate or basis of his fee, and engaged in a conflict of interest and conduct that seriously interfered with the administration of justice.
In re Larry Gordon. March 30, 2000. The court issued Gordon a public censure for failing to represent a client zealously or diligently. Gordon, who was appointed pursuant to the Criminal Justice Act, failed to seek postconviction relief as requested by his client and to advise his client of his decision not to do so.
In re James J. Gormley. March 16, 2000. In this criminal matter from the United States District Court for the Southern District of West Virginia, where Gormley was convicted of, among other things, wire fraud, perjury, and conspiracy to commit wire fraud and perjury, the court suspended him and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed.
In re Richard A. James. March 23, 2000. The court disbarred James on consent.
In re Shmuel B. Klein. March 23, 2000. In this reciprocal matter from New York, the court suspended Klein for five years, nunc pro tunc to January 11, 1999, with the requirement that he demonstrate fitness to practice law prior to reinstatement. The New York court suspended Klein with similar conditions. Klein engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, conduct that adversely reflects on his fitness to practice law, and conduct that seriously interfered with the administration of justice in connection with bankruptcy and legal malpractice matters.
In re Leonard W. Krouner. March 30, 2000. In this reciprocal matter from New York, where Krouner was publicly censured, the court suspended him for 30 days. The New York court’s censure was based, in part, upon Krouner’s conviction in the Albany City Court of Albany County, New York, on a charge of theft of services for placing in excess of $900 unauthorized long-distance telephone calls. Krouner failed to report his conviction to the New York disciplinary authorities within 30 days after it occurred. In connection with an estate matter, Krouner engaged in conduct involving dishonesty, conduct prejudicial to the administration of justice, and conduct that reflected adversely on his fitness to practice law by improperly signing the names of his clients to a testamentary document, causing the signatures to be notarized, and submitting the falsely notarized document to a New York court. The court concluded that reciprocal discipline was appropriate and that the misconduct warrants suspension rather than public censure in this jurisdiction.
In re Vincent D. Paragano. March 30, 2000. In this reciprocal matter from New Jersey, the court suspended Paragano for six months, nunc pro tunc to April 19, 1999. The New Jersey court suspended him for six months as a result of his stipulation that he had engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by mischaracterizing personal disbursements as business expenses. He has been reinstated in New Jersey and the District of Columbia.
In re G. Robert Patterson. April 13, 2000. In this reciprocal matter from New Jersey, the court disbarred Patterson. The New Jersey court disbarred Patterson in connection with three disciplinary proceedings involving a number of bankruptcy matters in which he engaged in conduct involving dishonesty and conduct that seriously interfered with the administration of justice, neglected legal matters, and failed to represent clients diligently, to communicate with clients, to turn over client files or refund unearned fees upon termination, and to cooperate with disciplinary authorities.
In re Martha Jane Shay. April 27, 2000. The court suspended Shay for 90 days. In connection with domestic relations matters, Shay undertook and continued to represent a client when her independent professional judgment on behalf of another client was, or was likely to be, adversely affected by the acceptance of the representation, or was likely to involve her in representing differing interests; failed to disclose to her clients the possible effect of the conflict on the exercise of her independent professional judgment on behalf of each client or to obtain their waiver of the conflict of interest; failed to withdraw from representation when it became clear that to continue the representation would violate the disciplinary rules; and engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation.
In re Gary S. Silverman. March 28, 2000. In a reciprocal matter from Maryland, the court suspended Silverman and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. Silverman consented to a 30-day suspension in Maryland for commingling entrusted funds with his own and for failing to supervise a nonlawyer employee over whom he had direct supervisory authority.
In re Andrew L. Singer. May 4, 2000. The court disbarred Singer on consent, nunc pro tunc to April 22, 1998.
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 firstname.lastname@example.org.