Washington Lawyer

Bar Counsel: What if Lawyers Lawfully Practicing in D.C. Were Subject to Discipline Here?

From Washington Lawyer, July/August 2003

By Joyce E. Peters

barcounselFor slightly more than a year, the Multijurisdictional Practice Committee of the District of Columbia Bar has been reviewing the American Bar Association (ABA) Report of the Commission on Multijurisdictional Practice, adopted by the ABA House of Delegates at its annual meeting in August 2002. The committee has been considering whether changes should be made to the D.C. Bar Rules, the D.C. Rules of Professional Conduct, or other rules related to the delivery of legal services in the District of Columbia because of evolutionary changes in the practice of law attributable to multijurisdictional practice, or MJP, as it is commonly called.

MJP is defined in the commission report as “the legal work of a lawyer in a jurisdiction in which the lawyer is not admitted to practice law.”1 This simple definition, which states the essence of the issue quite clearly and succinctly, does not capture the complexity of the practice issues involved in regulating MJP, or the interrelationships of issues such as admission to practice, lawyer discipline, and unauthorized practice of law, which must be considered when crafting rules that would permit or deny MJP in various settings.

Traditionally, law practice has been quite localized and subject to regulation by the highest court in a state or territorial area. Some specialized tribunals, such as those in the patent and trademark area, have adopted rules governing appearances and conduct in their proceedings. Largely, however, jurisdictional restrictions have been based upon the geographic boundaries of the governing court, which has looked to see where the lawyer is practicing.

These jurisdictional restrictions did not pose a problem when law practice was primarily a matter of local concern involving practice in local courts, and the lawyer needed only to know and be competent in his or her state’s laws. Today’s clients, however, may be multinational corporations, individuals living and traveling worldwide, and organizations involved in proceedings pending simultaneously in several geographic settings. Applying a geographic boundary concept to lawyer regulation does not work well when the client and work are not contained within established boundaries.

To complement the territorial licensing authority of the courts, the courts also adopted unauthorized-practice-of-law (UPL) rules initially intended to target nonlawyers who attempted to practice law without obtaining a license. The philosophy behind the UPL rules was to prevent the unlicensed person not skilled in the law from practicing illegally and causing harm to the community. Gradually, however, the UPL rules began to be applied to lawyers found to be practicing in jurisdictions where they were not licensed. In some instances the interloping lawyers would be sanctioned and prevented from practicing further, but often the UPL action would be intended to pressure or encourage the lawyer to obtain a license so that the lawyer’s activities in the jurisdiction would be lawful.

Recognition of the changing nature of legal practice and the inadequacy of applying the UPL rules to lawyers who have crossed jurisdictional lines in representing a client crystalized for many lawyers when the California Supreme Court found in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court of Santa Clara County2 that out-of-state lawyers not licensed in California violated California’s UPL rules (a misdemeanor) by assisting a California corporate client in a California arbitration and thus were barred from collecting fees for their services rendered in California. Although California subsequently amended its law to permit out-of-state lawyers to participate in California arbitrations under certain conditions, fears over the consequences of unauthorized MJP persisted. As a result of the new focus given to the issue of MJP, the ABA House of Delegates adopted the recommendation of the Commission on Multijurisdictional Practice to redefine the unauthorized practice of law in cases involving MJP and adopted extensive changes to ABA Model Rule 5.5. In doing so the commission noted:

The guiding principle that informs the Commission’s recommendations is simple to state: we searched for the proper balance between the interests of a state in protecting its residents and justice system, on the one hand; and the interest of clients in a national and international economy in the ability to employ or retain counsel of choice efficiently and economically.3

ABA Model Rule 5.5, as amended, now explicitly identifies what an out-of-state lawyer may do without engaging in the unauthorized practice of law. In addition to defining acceptable associations with local counsel who actively assist in a matter, the categories describe the types of permissible and impermissible activities. Curing the UPL problems associated with MJP, however, is only part of the problem. The commission also recognized that a jurisdiction would not want to let outside counsel practice within its territory and be powerless to deal with ethical infractions that might occur. As a result, the commission also chose to address the issue of disciplinary authority over lawyers.

Traditionally, disciplinary authority over lawyers has also been based on territorial notions (i.e., disciplinary authority extends over lawyers who are members of the state bar or admitted for a special purpose before a court in that state, as in a pro hac vice admission).4 Nonlawyers found to be practicing in a particular state would be subject to the jurisdiction of the state’s UPL authority. Lawyers found to be practicing unlawfully in a state would also be subject to that UPL authority, but in addition they would be answerable to the disciplinary authority of the state or states where they hold a license. The local bar counsel would have no authority over out-of-state lawyers practicing unlawfully (unless the local bar counsel also exercised UPL authority) or over out-of-state lawyers lawfully practicing under a UPL exception (e.g., lawyers engaged solely in federal practice).

In recognizing this gap in disciplinary authority, the commission also recommended, and the House of Delegates adopted, amendments to ABA Model Rule 8.5 (Disciplinary Authority: Choice of Law). Significantly, ABA Model Rule 8.5(a), with the amendments, now reads in part:

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (Emphasis added.)

With this change to ABA Model Rule 8.5(a), the question is what effect it might have on lawyer discipline in a jurisdiction that adopts the revised language. In theory it makes a lot of sense from a community protection standpoint for the state to be able to discipline all lawyers practicing within the state who may commit an ethical infraction.5 To the extent this occurs, the number of reciprocal discipline cases would likely rise, as the home state learns of discipline imposed in the state where the misconduct occurs. But also there’s a question of how many additional cases might arise if the local bar counsel could handle a disciplinary matter without regard to where the lawyer is licensed, assuming that the lawyer’s practice is otherwise lawful.6

As part of the D.C. Bar committee’s consideration of the revised ABA Model Rules on MJP, the Office of Bar Counsel (OBC) was asked to review all undocketed disciplinary cases in 2002 that it declined because the named lawyers were not subject to D.C. disciplinary jurisdiction. The committee was interested in learning if an expansion of our disciplinary jurisdiction to include all lawyers lawfully practicing in the District of Columbia,7 regardless of whether they are members of the D.C. Bar, would have a significant impact on the resources needed to operate our disciplinary system. The committee was also interested in learning something about the nature of the complaints filed here against lawyers who are not now subject to investigation or action by our disciplinary system.

In response to the committee’s request, OBC staff conducted a review of all undocketed cases for both 2001 and 2002 that were declined because the lawyer was not a member of the D.C. Bar. The review was expanded to include the 2001 cases to enlarge the sample of cases for the committee’s consideration.

To put this review in perspective, Table 1 reflects the overall operation of the Office of Bar Counsel for the past five years. OBC’s statistical experience over this five-year period indicates that it normally dockets8 about one-third of the complaints that it receives. OBC’s Criminal Justice Act (CJA) cases (i.e., principally complaints by criminal defendants) average about 15 percent of its total cases per year.

Table 1 reflects action taken by OBC with respect to all complaints received. Any undocketed complaints identified by the study that would potentially be docketed as a result of an expansion of OBC’s disciplinary jurisdiction would be in addition to those identified in the “Total Cases Docketed” category.

Table 2 reflects data gathered from the study. In each year OBC would have docketed an additional 17 cases,9 which would have increased its total investigations to 451 in 2001, an increase of 4 percent, and to 592 in 2002, an increase of 3 percent. OBC’s Undocketed Section would similarly have experienced an increase in its total preliminary inquiries by 3 percent in 2001 and 2 percent in 2002.10 The notes to Table 2 describe the kind of work the section would have done and identify the eight matters that would have been referred to Regulation Counsel.11 

To highlight issues of interest to the D.C. Bar committee, Table 3 contains information about cases that would have been docketed, undocketed for preliminary inquiry, or designated for CJA inquiry. The overwhelming majority of cases that would have been docketed or required other action were submitted by individual complainants from the metropolitan Washington area and involved allegations that the misconduct occurred in the District of Columbia. Solo practitioners were involved in only a very small percentage of the matters that would have required further work. It appears that lawyers not licensed in the District of Columbia but located here and practicing in firm settings would be most affected by a change in the rule. Cases of this nature already raise issues of vicarious ethical liability and would continue to do so.12

Table 4 highlights the undocketed complaints OBC reviewed that involve individual complainants, D.C. complainants, and conduct occurring in the District, categories that would be of particular interest if our disciplinary jurisdiction was expanded. For example, of the 197 complaints for 2001 that were reviewed, 96 involved individual complainants. Of that number Bar Counsel would have taken action in 38 percent of the complaints. When complaints involving either D.C. complainants or conduct occurring in the District are considered, Bar Counsel would have acted in significantly more than half of the cases. This suggests that a rule change enlarging our disciplinary jurisdiction would directly benefit the D.C. community.13

The study does not capture those potential complainants who telephone OBC and are advised that the office has no jurisdiction in their matter because their lawyer is not subject to our disciplinary jurisdiction. Nor does it include those who choose not to file a complaint based on conduct occurring in the District or elsewhere because they know OBC lacks jurisdiction. This suggests that the number of cases OBC found during its review of 2001 and 2002 would likely be less than the number it would actually experience if disciplinary jurisdiction was expanded. However, the data does provide some useful information about the cases that OBC cannot now handle because of jurisdictional limitations on disciplinary authority.

The work of the D.C. Bar Multijurisdictional Practice Committee will involve far more than simply the disciplinary piece of the MJP puzzle. However, keeping our community protected from ethical infractions by lawyers is an important part of the committee’s work, and the data that the Office of Bar Counsel collected provides some insight into what might occur if broader disciplinary authority was adopted as part of an MJP proposal. We might also expect a similar result in any jurisdiction adopting the revised ABA Model Rule 8.5, and that in turn would affect the number of our reciprocal disciplinary proceedings.

Notes
  1. American Bar Association, Report of the Commission on Multijurisdictional Practice 5 (2002) [hereinafter ABA MJP Report].
  2. 949 P.2d 1 (Cal. 1998).
  3. ABA MJP Report at 5.
  4. For example, pursuant to Rule XI, § 1(a), of the Rules of the District of Columbia Court of Appeals Governing the Bar, the following persons are now subject to the disciplinary jurisdiction of the D.C. Court of Appeals and its Board on Professional Responsibility: “All members of the District of Columbia Bar, all persons appearing or participating pro hac vice in any proceeding in accordance with Rule 49(c)(1) of the General Rules of this Court, all persons licensed . . . as Special Legal Consultants under Rule 46(c)(4), and all persons who have been suspended or disbarred by this Court. . . .”
  5. A number of states are considering these revised ABA Model Rules. Delaware has just adopted rules that mirror the revised ABA Model Rules 5.5 and 8.5. Arkansas, California, and Florida have proposals pending to amend their comparable rules with modifications.
  6. To the extent the lawyer’s practice is unlawful, the UPL authorities would still be involved. In some states this may be the bar counsel. In others, such as the District of Columbia, it is a separately established court entity, the Committee on Unauthorized Practice of Law.
  7. Under Rule 49 of the D.C. Court of Appeals Rules, the Committee on Unauthorized Practice of Law currently has jurisdiction over lawyers engaged in the unauthorized practice of law.
  8. Not all complaints are docketed. Docketing means a complaint is assigned for formal investigation pursuant to Rule XI, § 6(a)(2). If a complaint fails to meet the criteria in Rule XI for docketing and does not involve a criminal matter, it will be handled as an undocketed matter. In some undocketed matters a preliminary inquiry may result in docketing.
  9. This represents about 8 to 9 percent of the 2001 and 2002 cases reviewed for this study.
  10. Preliminary inquiries require significantly more work than letters declining an investigation based upon nonmember status.
  11. Regulation Counsel of the D.C. Bar supervises the staff responsible for lawyer assistance programs and the Clients’ Security Fund.
  12. Some cases of vicarious liability may come to the attention of the Committee on Unauthorized Practice of Law. The committee has proposed a change to the language of Rule 49 that would make explicit its discretion to share information with Bar Counsel concerning these potential violations.
  13. OBC receives numerous opinions by the Maryland Court of Appeals and the Virginia Supreme Court that it reviews and undockets for tracking purposes if the attorney is not a member of the D.C. Bar. OBC would docket only those cases in which the attorney had contact in the District of Columbia under an expanded jurisdiction rule. OBC took this premise into account during the review.
Disciplinary Actions Taken by the Board on Professional Responsibility

IN RE SHOLA E. AYENI. Bar No. 431802. April 8, 2003. The board recommends that the court disbar Ayeni based upon his conviction in the United States District Court for the District of Columbia of wire fraud, conspiracy, theft, and fraud, all of which are crimes that involve moral turpitude per se for which disbarment is mandated by D.C. Code § 11-2503(a) (2001).

IN RE HERBERT COHEN. Bar No. 103408. May 13, 2003. On remand from the court to examine the board’s recommended terms of probation and to clarify the board’s recommended notice requirement under D.C. Bar R. XI, § 14, the board now recommends that the court suspend Cohen for 30 days without the option of probation and that for the purposes of reinstatement the 30-day suspension runs from the date Cohen files his affidavit in compliance with D.C. Bar R. XI, § 14(g). Cohen was found to have violated Rules 1.4(a), 1.7(b), 1.16(d), and 5.1(a), and pursuant to Rule 5.1(c)(2) was imputed with violations of Rules 3.3(a) and 8.4(c) committed by an associate of his firm who was not a member of the D.C. Bar.

IN RE GEORGE T. COUMARIS. Bar No. 279836. April 22, 2003. The board recommends that the court disbar Coumaris by consent.

IN RE ALVIN GILBERT DOUGLASS. Bar No. 259549. May 30, 2003. The board recommends that the court suspend Douglass for 90 days based upon his failing 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 shielding him from all potential claims arising out of the injuries suffered on the cruise and a note confessing liability to him for attorney’s fees. Douglass was found to have violated Rules 1.1(a) and (b), 1.3(a) and (c), 1.8(a), and 1.16(d).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

IN RE GEORGE T. COUMARIS. Bar No. 279836. May 8, 2003. The court disbarred Coumaris by consent.

IN RE S. EDWARD FIRESTONE. Bar No. 314674. May 22, 2003. The court disbarred Firestone based upon his conviction of 18 counts of mail fraud in the United States District Court for the District of Massachusetts. The court noted that mail fraud is a crime of moral turpitude per se for which disbarment is mandated by D.C. Code § 11-2503(a) (2001).

IN RE BRUCE H. HEST. Bar No. 286955. May 29, 2003. In a reciprocal matter from Florida, the court disbarred Hest. The Florida court granted Hest’s petition for disciplinary resignation with leave to seek readmission after five years, noting that its action was “tantamount to disbarment.” Hest’s petition to the Florida court cited various outstanding disciplinary matters, including a disciplinary action alleging misappropriation of client funds, a pending disciplinary matter involving allegations of having charged an excessive fee, and two other matters in which he was alleged to have engaged in numerous trust accounting violations, including misappropriation of client funds.

IN RE GREGORY C. MITCHELL. Bar No. 327932. May 8, 2003. The court suspended Mitchell for 90 days based upon his failing to notify and pay a third-party medical provider for whom he was in receipt of funds, making a material false statement to a third-party medical provider during the course of the representation, and engaging in dishonesty and misrepresentation. The court found that Mitchell violated Rules 1.15(b), 4.1(a), and 8.4(c).

In re Sylvia A. Ryan. Bar No. 386828. May 15, 2003. The court affirmed Ryan’s conviction on one count of criminal contempt for the unauthorized practice of law. The trial court found that Ryan had, in fact, held herself out as a licensed attorney and provided legal services in contravention of an order suspending her license to practice law in the District of Columbia.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE JOHN A. CROCKETT. Bar No. 416447. March 28, 2003. Bar Counsel issued Crockett an informal admonition for revealing a client confidence or secret in his motion to withdraw from the representation and using the confidence or secret to the advantage of himself or a third person.

IN RE MICHAEL P. FLAHERTY. Bar No. 113829. April 11, 2003. Bar Counsel issued Flaherty an informal admonition for failing to serve a client with skill and care, failing to hold entrusted funds belonging to a client or third party in an account containing the words trust account or escrow account, and failing to label an account with estate funds as an estate account as required by D.C. Code § 20-741 (2001).

IN RE DIMITRI P. MALLIOS. Bar No. 34553. March 26, 2003. Bar Counsel issued Mallios an informal admonition for failing, after repeated requests, to turn over promptly his former client’s file after termination of the representation.

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.