Washington Lawyer

Bar Counsel: Dues and Don’ts

From Washington Lawyer, July/August 2002

By Joyce E. Peters

barcounselHave you paid your Bar dues? Are you sure? Did you do it yourself, or are you relying on your secretary, your firm, your partner, your spouse, or some organization to do it for you? Did you sign the registration statement, verify the other bars of which you are a member, and update your addresses? Did you submit your updated registration statement by July 1?

All of these actions are required by Rule II of the District of Columbia Court of Appeals Rules Governing the Bar, which provides in part in section 2(1):

Every attorney who engages in the practice of law within the District of Columbia as defined in Rule 49(b) of the general Rules of the Court…shall on or before July 1 of every year file with the Secretary of the Bar a registration statement setting forth his or her current residence and office addresses, telephone number, other state jurisdictions in which he or she is admitted to practice including date of admission, and such other information as the Court may from time to time direct. (Emphasis added.)

     Unfortunately, however, some lawyers, whose thoughts may be more on barbecues and beach getaways than on this yearly task, neglect to file their registration statement and pay their Bar dues on time—or forget to register or pay their dues at all! Sometimes it isn’t the member who forgets. Maybe the law firm administrator failed to send the registration statement and a check for the lawyer. Mistakes happen. But it is the Bar member, not the law firm administrator, who faces the consequences of the failure to register and pay dues.

D.C. App. R. II, § 2(3), describes the consequences of failing to register:

Any attorney who fails to file any registration statement or supplement thereto in accordance with the requirements of paragraph (1) above shall, after due notice from the Secretary of the Bar, be summarily suspended from membership by the Board of Governors and thereby shall be barred from practicing law in the District of Columbia until he or she be reinstated as provided under section 7 of this rule. (Emphasis added.)

     And section 6 of Rule II provides:

If the annual dues of any member remain unpaid at the expiration of 90 days from the time when such dues are due and payable, the membership of such member may be suspended by the Board of Governors in the manner provided in the By-laws. No person whose membership is so suspended for nonpayment of dues shall be entitled to practice law in the District of Columbia during the period of such suspension. (Emphasis added.)

     Although the Court of Appeals has provided for a mandatory suspension for failure to file the annual registration statement but has given the Board of Governors some flexibility in imposing administrative suspensions for nonpayment of dues, D.C. Bar members who fail to register and pay their dues on time risk late fees and administrative suspension of their license; complaints of unauthorized practice of law in the District of Columbia under D.C. App. R. 49;1 and possibly even discipline.

Moreover, those who have been administratively suspended and would like to be reinstated must comply with D.C. App. R. II, § 8, by applying to the Board of Governors for approval for their reinstatement request. Although the Board of Governors may reinstate the lawyer to membership nunc pro tunc only in cases where there is error or omission by the Bar, and thus undo issues involving unauthorized practice that might have arisen from the administrative suspension, the entire process is quite ignominious. Far worse is having opposing counsel or a judge discover the lawyer’s administrative suspension on the morning of trial and raise it before the lawyer’s client. In fact, this happens. Bar Counsel often learns from opposing counsel, a magistrate, or a judge that a lawyer suspended under Rule II for failure to register and pay Bar dues is practicing law in the District of Columbia.

With more than 76,000 members of the D.C. Bar, there are always a few who fail to keep their licenses current and don’t recognize the consequences of their failure. Each year the Bar notifies its members of the annual registration and dues requirement by mail. The Bar uses the addresses provided by its members in their most recent registration statements or supplemental statements,2 and sends the notices to the addresses designated by the members for Bar correspondence. Of course, if the member hasn’t updated his or her correspondence address, the member may not get the actual notice. This is the member’s problem; the I-never-got-the-notice defense isn’t an automatic defense. Each Bar member has a personal responsibility to maintain correct address, telephone, and Bar admission information on file with the Bar. He or she is deemed to have constructive notice with the mailing of the notice to the designated correspondence address most recently listed with the Bar. The Bar is not required to hunt down its members; its members have a professional responsibility to provide updated information. They fail to do so at their own peril.

Once the period for payment of dues has elapsed, the Bar administratively suspends those lawyers who have failed to register and pay Bar dues. The Bar makes entries in the individual membership records of the noncomplying Bar members and sends the clerks of both the D.C. Court of Appeals and the Superior Court, as well as Bar Counsel, a list of those who have been administratively suspended. These membership record entries are permanent. Even if the lawyer is reinstated, the blemish of nonpayment remains in the lawyer’s records. Thus, when Bar Counsel is asked to prepare a certificate concerning discipline for a lawyer who once was administratively suspended, both the administrative suspension and its duration appear on the certificate.

In February 2002 the D.C. Bar Board of Governors voted to amend the D.C. Bar bylaw governing suspension for nonpayment of dues.3 The effect of this change is to modify the schedule for payment of dues by shortening the time allowed for payment of Bar dues without incurring a late fee, thus encouraging Bar members to pay their dues sooner. Although the registration statements and the dues payments are still due on July 1, when the Bar’s new fiscal year begins, as required by D.C. App. R. II, § 2, D.C. Bar members now have only until August 15 to pay their dues without incurring a $30 late fee. Any D.C. Bar member who has not paid required annual dues by August 15 will receive a final notice from the Bar advising that he or she will be suspended if the appropriate dues and late fees are not received with a postmark on or before September 30. This suspension is imposed without further notice from the Bar.

So what does Bar Counsel do upon discovering that an administratively suspended lawyer may be practicing law in the District of Columbia? In general, the matter is docketed for investigation, and the lawyer is confronted over his or her failure to comply with the applicable rules. We examine what happened, what the lawyer is doing, how long the suspension has been in effect, and what the lawyer’s explanation may be.
Rule 5.5(a) of the District of Columbia Rules of Professional Conduct provides that a lawyer shall not “practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” Practicing law while administratively suspended for failing to register and nonpayment of dues would violate D.C. App. R. II, §§ 2 and 6, and D.C. App. R. 49. In fact, in In re Kennedy4 the court found an ethical violation and imposed discipline where an administratively suspended lawyer was found to be practicing law in the District of Columbia.

In Kennedy the lawyer was charged with several violations under the former disciplinary rules. Among them was a charge under Disciplinary Rule (DR) 3-101(B) for engaging in the practice of law while under suspension. DR 3-101(B), in effect at that time, provided that a lawyer shall not “practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.” D.C. App. R. II, § 6, as quoted above, was also in effect.5 Kennedy, who was suspended for almost two years for nonpayment of dues and who actively practiced during that period, admitted that “he was required to pay yearly dues to the District of Columbia Bar and that he knew he would be suspended for not paying those dues.”6 Kennedy, who had refused to accept the certified letter from the Bar notifying him of his suspension, did not contest the finding by the Board on Professional Responsibility that he violated DR 3-101(B). The court recognized the permissive nature of the language concerning suspension for nonpayment of dues,7 and in discussing the need for notice stated that “reasonable claims to a lack of knowledge of the suspension should be taken into account.”8 In addition, the court noted that although this violation (i.e., practicing law in the District of Columbia while administratively suspended) was not as serious as other misconduct with which Kennedy was charged, “two years is clearly an excessive period of time in which to neglect payment.”9

Thus, the failure to pay Bar dues, particularly if swiftly remedied to avoid the unauthorized practice of law, may be viewed as a relatively minor disciplinary infraction, but the length of time that the lawyer neglects to pay dues may cause a simple failure to ripen into a more serious disciplinary matter. The better choice, of course, would be to register and pay the annual Bar dues in a timely manner to avoid these problems altogether.

Registering with the Bar and paying dues annually are important parts of maintaining a valid license to practice law in the District of Columbia. The dos and don’ts for dues and membership are simple:

  • Do register with the Bar on time.
  • Do take the initiative to verify that your dues were paid, if another pays your dues for you.
  • Don’t forget to update your registration statement and report any change of address.
  • Do pay your dues by July 1, or at least before August 15 to avoid a late fee.
  • And most importantly, don’t practice law if you have been administratively suspended for failure to register or pay dues, until you are reinstated!

Notes

  1. Rule 49 provides pertinently, “No person shall engage in the practice of law in the District of Columbia . . . unless enrolled as an active member of the District of Columbia Bar.”
  2. D.C. App. R. II, § 2(1), also requires attorneys to submit supplemental registration statements within 30 days of the change of any of the reported information (i.e., home and office addresses, telephone numbers, and bar admissions). Fortunately, the Bar has made it easier to report a change of address. If you visit the Bar’s Web site, www.dcbar.org, you can do it online.
  3. The applicable provision is found in D.C Bar bylaw article III, section 2(a).
  4. 542 A.2d 1225 (D.C. 1988).
  5. The language at that time, however, was contained in D.C. Bar R. II, § 5.
  6. 542 A.2d at 1227.
  7. Neither the board nor the court discussed whether Kennedy had registered with the Bar—an event that normally occurs in tandem with the payment of dues. As discussed above, the permissive language concerning suspension for nonpayment of dues is not present in cases of failure to register. The Kennedy decision, however, does not address registration with the Bar.
  8. 542 A.2d at 1229.
  9. Id.

Disciplinary Actions Taken by the Board on Professional Responsibility
In re Margaret A. Beller. 800 New Hampshire Avenue NW, Washington, D.C. April 25, 2002. The board recommends that the court suspend Beller for 30 days, with her reinstatement conditioned upon her full compliance with Bar Counsel’s requests for information in connection with three disciplinary investigations. Beller failed to respond to six requests for information from Bar Counsel and three orders by the board relating to investigations in three separate disciplinary matters. The board found that Beller engaged in ethical misconduct by failing to respond to lawful demands for information from a disciplinary authority, seriously interfering with the administration of justice, and failing to comply with orders of the board.

In re Jay M. Berkowitz. 9907 Edward Avenue, Bethesda, Maryland. April 2, 2002. The board issued a supplemental report in March 2001 concluding that Berkowitz had engaged in misappropriation that was not the result of simple negligence and again recommended that he be disbarred. The misappropriation occurred when Berkowitz, without authority, took funds belonging to an estate. Berkowitz also was found to have violated Rule 1.15(b) for failing to notify the personal representative, his client, of his receipt of a check payable to the estate. In September 2001 the court remanded the matter to the board for reconsideration of its sanction recommendation in light of the court’s recent opinions in two mis-appropriation cases, In re Anderson, 778 A.2d 330 (D.C. 2001), and In re Fair, 780 A.2d 1106 (D.C. 2001). The board concluded that Bar Counsel had established by clear and convincing evidence that Berkowitz’s misappropriation of estate funds was intentional and/or reckless, and reaffirmed its recommendation that the court disbar him.

In re Michael A. Ceballos. 200 East Forsyth Street, Jacksonville, Florida. April 4, 2002. In this reciprocal matter from Florida, the board recommends that the court indefinitely suspend Ceballos based on his disability and condition his reinstatement upon a showing of fitness pursuant to D.C. App. R. XI, § 13(g). The board further recommends that an earlier reciprocal matter from Florida be held in abeyance until such time as Ceballos demonstrates that he has overcome his disability and establishes his fitness to resume the practice of law.

In re James F. Childress. PO Box 7173, Arlington, Virginia. April 26, 2002. In a reciprocal matter from Maryland, the board recommends that the court suspend Childress for one year, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Childress was suspended indefinitely in Maryland, with the right to apply for reinstatement after the expiration of one year, for using his computer to facilitate sexual contact and communication with female children.

In re John W. Cole. 1360 West Prairie Court, Olathe, Kansas. April 4, 2002. In this reciprocal matter from Kansas, the board recommends that the court suspend Cole for three years, with the requirement that he demonstrate fitness to practice law prior to reinstatement. In the first matter the Kansas court found that Cole undertook a matter in which he lacked competence; failed to abide by his client’s wishes concerning the objectives of the representation; failed to pursue the personal injury and wrongful death claims entrusted to him; failed to keep his client reasonably informed; failed to have a written contingent fee agreement; and engaged in conduct that adversely reflected on his fitness to practice law. For this misconduct the Kansas court suspended Cole for one year and conditioned his reinstatement on passing the multistate professional responsibility examination. In the second matter the Kansas court suspended Cole indefinitely for his failure to respond to or cooperate with a disciplinary investigation. Under the Kansas court rules, an attorney indefinitely suspended may apply for reinstatement after three years. The board recommended that the court impose the functionally identical discipline of a three-year suspension with the requirement that Cole prove fitness prior to reinstatement.

In re Craig B. Dunbar. Rhodes, Dunbar & Lomax, 4530 Wisconsin Avenue NW, Washington, D.C. April 8, 2002. The board recommends that the court disbar Dunbar based on his criminal conviction. Dunbar was convicted on his plea of guilty in the United States District Court for the Eastern District of Virginia on a felony charge of mail fraud. The board concluded that because the offense for which Dunbar was convicted inherently involves moral turpitude, disbarment is required under D.C. Code § 11-2503.

In re Jeffrey M. Ford. 615 U Street NW, Washington, D.C. April 26, 2002. The board publicly reprimanded Ford for refusing to turn over his client’s file and retaining the file as an illegal lien for his fee.

In re Chester N. Katz. PO Box 639, Silver Spring, Maryland. May 1, 2002. The board recommends that the court suspend Katz for six months, but stay the suspension and place Katz on probation. The board found that Katz engaged in negligent misappropriation and failed to safeguard property adequately in his possession when he used one client’s check made payable to the D.C. Treasurer for recordation fees relating to her real estate transaction to pay the costs associated with another client’s real estate transaction. The board found that Katz had established that a medical condition had caused the misconduct.

In re John H. Kitchings Jr. 2312 Halls Grove Road, Gambrills, Maryland. May 3, 2002. The board recommends that the court suspend Kitchings for 18 months, with the requirement that he demonstrate fitness to practice law prior to reinstatement. Kitchings’s misconduct occurred in the course of representing 15 different clients from September 1992 through January 1998. His misconduct included failing to represent the clients with diligence and zeal, failing to act with reasonable promptness in representing the clients, failing to keep the clients reasonably informed about their matters, failing to communicate offers of settlement, failing to notify promptly of his receipt of funds and to deliver to his clients the funds to which they were entitled, and failing to take timely steps upon termination of representation to protect the clients’ interests. The board found that Kitchings’s misconduct resulted in serious prejudice to multiple clients, and that Kitchings had failed to accept any personal responsibility for his misconduct.

In re Jeffrey M. Laub. 1901 Research Boulevard, Rockville, Maryland. April 16, 2002. The board recommends that the court disbar Laub based on his criminal conviction. Laub was convicted on his plea of guilty in the United States District Court for the District of Maryland to mail fraud. The board found that because mail fraud is a crime that inherently involves moral turpitude, disbarment was required under D.C. Code § 11-2503(a).

In re Gregory John Schwartz. 4200 Wisconsin Avenue NW, Washington, D.C. April 11, 2002. In this reciprocal matter from Maryland, the board recommends that the court suspend Schwartz for 18 months, with all but 60 days stayed. The Maryland court suspended Schwartz based on a joint petition for suspension by consent in which Schwartz acknowledged that he had been charged with filing six Chapter 13 bankruptcies in bad faith to forestall a foreclosure on his home and that he had placed personal funds into an account designated as a trust account. The board concluded that Schwartz’s misconduct established violations of the D.C. rules including using means that have no substantial purpose other than to embarrass, delay, or burden a third person; engaging in conduct that seriously interferes with the administration of justice; and knowingly assisting or inducing another to violate or attempt to violate the Rules of Professional Conduct.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
In re William A. Borders. 1621 New Hampshire Avenue NW, Washington, D.C. May 2, 2002. The court denied Borders’s motion to vacate its order of disbarment, without prejudice to his filing a petition for reinstatement before the board. Borders was disbarred in 1983 based on his 1982 federal convictions for conspiracy, obstruction of justice, and unlawful travel in interstate commerce with intent to commit bribery—crimes involving moral turpitude that required his disbarment under D.C. Code § 11-2503(a). On January 20, 2001, President Clinton granted Borders a full and unconditional pardon. Borders contended that the pardon entitled him to automatic reinstatement to the D.C. Bar. The court found that the language of D.C. Code § 11-2503(a) permitted it to vacate or modify the order of disbarment based on the pardon, but did not require it to do so. The court held that the pardon did not require Borders’s automatic reinstatement without regard to whether he established his fitness to resume practice in accordance with the applicable law. The court ruled that Borders may file an application for reinstatement with the board, and in that proceeding he may urge the pardon as a consideration for reinstatement.

In re Deloris A. Brown. 3807 Wilshire Boulevard, Los Angeles, California. April 18, 2002. In a reciprocal matter from California, the court suspended Brown for a period of five years, with the requirement that she prove fitness before being reinstated. Brown was the subject of two disciplinary actions in California. In the first matter she was suspended for 60 days and placed on two years’ probation for misappropriating client funds. In the second matter she was charged with representing a client during her suspension and perjuriously denying doing so in an affidavit filed with the court. The charges in the second matter were resolved when Brown voluntarily resigned from the State Bar of California, without prejudice to further proceedings against her if she later sought reinstatement.

In re Michael Ceballos. 200 East Forsyth Street, Jacksonville, Florida. May 16, 2002. In a reciprocal matter from Florida, the court indefinitely suspended Ceballos from the practice of law in the District of Columbia based on his disability and ordered that all disciplinary matters pending against him be held in abeyance until further order of the court.

In re Jeffrey M. Ford. 615 U Street NW, Washington, D.C. April 18, 2002. The court dismissed the charges against Ford for failure to provide competent representation owing to errors in a probate petition because the errors did not rise to the level of an ethical violation.

In re James G. Gore Jr. PO Box 7499, Alexandria, Virginia. April 10, 2002. The court referred the matter to the Board on Professional Responsibility to have Bar Counsel investigate Gore’s conviction of failure to file a sales tax return in a timely manner, and to proceed accordingly.

In re Christos G. Ladas. 68 Rolling Woods, West Seneca, New York. May 23, 2002. In a reciprocal matter from New York, the court disbarred Ladas. Ladas was suspended for two years in New York for misrepresentation and dishonesty, lack of fitness to practice law, commingling, and misappropriating client funds. Because the facts found by the New York court established that Ladas engaged in intentional misappro-priation, the court concluded that disbarment was the appropriate sanction in the District of Columbia.

In re James S. Maxwell. 51 Monroe Place, Rockville, Maryland. May 23, 2002. In a reciprocal matter from Maryland, the court declined to adopt the recommendation of the Board on Professional Responsibility to suspend Maxwell for one year, a sanction greater than that imposed in Maryland. The court remanded the matter to the board for reconsideration as to whether to recommend identical reciprocal discipline or to direct further proceedings before a hearing committee. In the Maryland disciplinary matter, Maxwell had consented to a public reprimand for ethical violations consisting primarily of conflicts of interest.

In re Patrick H. McCarthy. 5851 Potomac Avenue NW, Washington, D.C. May 21, 2002. The court suspended McCarthy based on his guilty plea in the United States District Court for the Eastern District of Pennsylvania for endeavoring to obstruct a Securities and Exchange Commission investigation and directed the Board on Professional Responsibility to determine whether the crime involves moral turpitude and the nature of the final discipline to be imposed.

In re G. Rico McGowan. 87 Gentry Court, Annapolis, Maryland. April 12, 2002. In a reciprocal matter from Maryland, the court temporarily suspended McGowan and directed the Board on Professional Responsibility to determine the nature of the final discipline to be imposed. McGowan was disbarred in Maryland for misappropriating entrusted funds, incompetence, lack of diligence, failure to communicate, dishonesty, and failure to cooperate with the Maryland disciplinary authorities.

In re Stephen Lee Shellnut. PO Box 536, Arlington, Virginia. April 25, 2002. In a reciprocal matter from Virginia, the court suspended Shellnut for six months, nunc pro tunc to May 7, 2001. Shellnut’s misconduct included neglecting a legal matter, failing to keep a client reasonably informed, knowingly making a false statement, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

In re Robert J. Sheridan. 800 North Charles Street, Baltimore, Maryland. April 18, 2002. In a reciprocal matter from Maryland, the court disbarred Sheridan. The Maryland court had indefinitely suspended Sheridan for failure to keep funds collected for a client separate from his own, failure to notify the client of funds received, failure to keep disputed funds separate until the dispute is resolved, dishonesty, and willful removal of funds for professional or personal use. The court ruled that disbarment was warranted in the District of Columbia because the Maryland court had found that Sheridan’s misappropriation of client funds was knowing and dishonest and because of his history of prior discipline in the District of Columbia.

In re Malcolm B. Wittenberg. Crosby Heafey Roach & May, 2 Embarcadero Center, San Francisco, California, May 21, 2002. The court suspended Wittenberg based on his plea of guilty to insider trading in the United States District Court for the Northern District of California, and directed the Board on Professional Responsibility to determine whether the crime involves moral turpitude and the nature of the final discipline to be imposed.

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Reports and recommendations issued by the Board on Professional Responsibility, as well as informal admonitions issued by the Office of Bar Counsel, are posted on the D.C. Bar Web site at www.dcbar.org. Court opinions are printed in the Atlantic Reporter and, for decisions issued since mid-1998, are also available online. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/dccourts/appeals/opinions_mojs.jsp. Please note that in some cases Bar members may have the same name. To confirm the identity of individuals who have been subject to discipline, contact the D.C. Bar Member Service Center at 202-626-3475 or membership@dcbar.org.