Bar Counsel: Ethical Issues of Unauthorized Practice and Supervisory Liability: Part 1
From Washington Lawyer, July/August 2004
By Joyce E. Peters and Anthony C. Epstein
On July 3, 1776, in a letter to his wife, John Adams commented on the founding of the new United States:
Yesterday the greatest Question was decided, which ever was debated in America, and a greater, perhaps, never was or will be decided among Men. A Resolution was passed without one dissenting Colony “that these united Colonies are, and of right ought to be, free and independent States.”John Adams was obviously commenting on the decision by the Founding Fathers to break the ties with England, declare independence, and establish a new form of democratic government. Of course, we know the end of the story was the creation of our country and the innovative creation of a united sovereign nation composed of sovereign states. Far from the founders’ minds were any questions about how the practice of law might be affected by their political decisions. No one raised any question about what would happen if a Maryland lawyer strayed into Virginia to help a Virginia farmer. The District of Columbia was yet to be created, and the difficulties of travel in 1776 alone made the possibility of the vagabond lawyer practicing law across state lines virtually fictional.
Today, however, lawyers around the country are struggling with issues of multijurisdictional practice and unauthorized practice of law. No longer are geography and difficulties in communication physical barriers to or physical limitations on a lawyer’s practice. Rather today’s limitations on the extent of a lawyer’s practice arise from the ethical rules adopted in the several states and in the international community.
The principal issue involves defining the unauthorized practice of law. In most states the question becomes whether or not to allow lawyers not licensed there but licensed in a sister state or nation to engage in some form of limited practice within the state. This question has been or is being studied in virtually every state by bar committees. The Center for Professional Responsibility of the American Bar Association has monitored the work done by the several states and reports its findings in a regularly updated chart located at www.abanet.org/cpr/jclr/5_5_ quick_guide.doc. With the exception of Connecticut, which in January 2004 rejected any multijurisdictional practice amendment to its rules, most states either are still studying the new ABA Model Rules, principally Model Rules 5.5 and 8.5, or have recommended or adopted changes to their rules to permit some form of multijurisdictional practice within their borders.
In the District of Columbia, the Multijurisdictional Practice Committee of the D.C. Bar has been examining for the past two years the issue of multijurisdictional practice, unauthorized practice of law, and model rule changes adopted by the American Bar Association in August 2002. The committee is now drafting a report detailing its findings and recommendations. The committee has probed the issues of unauthorized practice and discipline for unauthorized and authorized multijurisdictional practice.
Bar Counsel has served as a liaison to the Multijurisdictional Practice Committee to help answer questions about the disciplinary system. Anthony Epstein, a member of the committee, is also chair of the Committee on Unauthorized Practice of Law of the District of Columbia Court of Appeals. Together we have decided to discuss some of the ethical issues of unauthorized practice and supervisory liability, including how these issues are viewed in the District of Columbia. Our conversation in this column and Bar Counsel’s column in September should illuminate how our rules work and what some of the more difficult questions involving unauthorized practice are.
Peters: The District of Columbia Court of Appeals has created a unique system for enforcing its rules prohibiting unauthorized practice of law by dividing the enforcement responsibility between Bar Counsel and the Committee on Unauthorized Practice of Law. This division of responsibility separates cases involving D.C. Bar members from cases involving nonmembers. The Office of Bar Counsel prosecutes lawyers for unauthorized practice only if the violations are committed by lawyers subject to the court’s disciplinary authority, that is, primarily D.C. Bar members, special legal consultants licensed here, or lawyers who are appearing or participating pro hac vice before District of Columbia courts.1 If the lawyer does not fit within one of these categories, Bar Counsel has no authority to investigate or prosecute an allegation of unauthorized practice or other ethical misconduct.
Epstein: In contrast, the court’s Committee on Unauthorized Practice of Law has enforcement responsibility for Rule 49 of the District of Columbia Court of Appeals, the rule against unauthorized practice. Despite this separation of regulatory authority, the Committee on Unauthorized Practice and the Office of Bar Counsel cooperate with each other to ensure that not only lawyers who engage in unauthorized practice, but also lawyers who facilitate unauthorized practice, are held accountable. Thanks to a recent amendment that makes it easier for the committee to share information with Bar Counsel, this cooperation will only increase. It’s not just lawyers admitted in other jurisdictions who practice in the District who have a stake in complying with Rule 49. So do members of the D.C. Bar.
Peters: A good place to start is with a brief explanation of Rule 49. Tony, this is your area of expertise.
Epstein: The basic principle of Rule 49 is that no one except an active member of the D.C. Bar may engage in the practice of law in the District of Columbia or hold himself or herself out to practice law in the District. Rule 49 states:
No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.The proviso at the end of this section is important because Rule 49 has a number of significant exceptions that apply to a sizable number of lawyers practicing in the District. For example, there are exceptions for lawyers employed by the U.S. government, lawyers who limit their practice to certain federal or D.C. agencies, in-house lawyers employed by organizations and private companies, and lawyers admitted elsewhere with pending applications to the D.C. Bar.
Peters: Tony, I know that Rule 49(b) contains five definitions that are very important in interpreting Rule 49.2 For example, Rule 49(b)(3) defines in the District of Columbia as “conduct in, or conduct from an office or location within, the District of Columbia,” unless the person’s presence in the District is of “incidental or occasional duration.” Anyone who is not a D.C. Bar member and who is thinking about practicing law in the District should read the language carefully so that Rule 49 is correctly interpreted. The exceptions also are quite detailed.
Epstein: Yes, Joyce, and several of these exceptions have explicit conditions. The most common condition requires the lawyer to provide notice on all professional communications of the limits on the lawyer’s practice that permit the lawyer to qualify for the exception. See Rule 49(c)(2) for lawyers who only represent clients before federal agencies, like the Patent and Trademark Office, the Internal Revenue Service, or the Federal Communications Commission, and Rule 49(c)(8) for lawyers admitted elsewhere who have a pending, timely application for D.C. Bar membership. Perhaps the most common complaints to the committee involve lawyers admitted in other jurisdictions whose practice falls within an exception to Rule 49 but who do not provide the required notice about the limitations on their practice.
Peters: Actually, Tony, in addition to the issue about notice, lawyers practicing under exceptions need to be careful. We have had one reciprocal discipline case, In re Bridges,3 in which a lawyer, prior to his admission in Maryland, was lawfully practicing under an exception in Maryland’s unauthorized-practice-of-law rules (which allow a lawyer to maintain an exclusive federal practice). The lawyer refused to cooperate with Maryland Bar Counsel when asked about the nature of the lawyer’s practice prior to his admission in Maryland. Maryland concluded that the lawyer’s practice prior to his admission in Maryland was not unauthorized, but it found that the lawyer, who was then a member of the Maryland Bar, was required to respond to Maryland Bar Counsel about his preadmission activity. The result was discipline in Maryland and then reciprocal discipline here for the failure to cooperate, in violation of Rule 8.1(b) of the Maryland Rules of Professional Conduct. This is an unusual case, but it is worth noting, as lawyers in this region often seek admission after they have begun some sort of authorized practice under an exception in Rule 49.
If, however, an allegation of unauthorized practice is made, what does the committee do when it gets that type of complaint? What’s the role of the Committee on Unauthorized Practice of Law?
Epstein: The committee has about 10 members and operates much less formally than the Office of Bar Counsel or the Board on Professional Responsibility. Our main objective is compliance, and we resolve most cases through agreements in which lawyers agree to bring themselves into compliance with Rule 49. However, in cases involving more egregious or aggravated conduct, we take a harder line.
Peters: Is Rule 49 the only rule that a lawyer engaged in unauthorized practice has to worry about?
Epstein: Absolutely not. Every U.S. jurisdiction has a rule equivalent to Rule 5.5(a) of the D.C. Rules of Professional Conduct.4 Rule 5.5(a) makes it unethical for a lawyer licensed in one jurisdiction to engage in unauthorized practice in any other jurisdiction. So a lawyer admitted in Maryland, Virginia, or any other jurisdiction who engages in unauthorized practice in the District of Columbia risks disciplinary action in the lawyer’s home jurisdiction. Similarly, a D.C. lawyer who engages in the unauthorized practice of law in another state will likely face discipline here.
Peters: That’s exactly right. Bar Counsel can and does investigate allegations of unauthorized practice and can initiate an original disciplinary action when a lawyer licensed in the District of Columbia engages in unauthorized practice in another jurisdiction. But, in addition, we have had several reciprocal cases from Maryland that have involved disciplinary action taken against D.C. lawyers for unauthorized practice in Maryland. Maryland disciplinary authorities can impose disbarment for unauthorized practice by lawyers who are not even licensed in Maryland.5 When these types of Maryland cases are considered here as reciprocal matters under D.C. Bar Rule XI, § 11, the lawyers can face serious sanctions. In fact, one of these cases resulted in a disbarment in the District of Columbia.6
Epstein: And as you well know, it’s not just the lawyer who engages in unauthorized practice who may have an ethical issue. It’s also the lawyers with whom that lawyer practices.
Peters: Yes, indeed. Rule 5.5(b) prohibits a lawyer from assisting a person who is not a member of the Bar in any activity that constitutes the unauthorized practice of law. This prohibition “protects the public against rendition of legal services by unqualified persons.”7 These unqualified persons may be either nonlawyers or lawyers licensed elsewhere but not in the District of Columbia.
The prohibition in Rule 5.5(b) can also be violated by a supervisory lawyer who fails to fulfill his or her responsibilities under Rule 5.1 or 5.3, which impose responsibilities on partners and supervising lawyers. Rule 5.1(a) concerns law firm partners and imposes a duty to ensure that “the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” Similarly, Rule 5.1(b) deals with a lawyer who has direct supervisory authority over another lawyer regardless of the type of legal organization. Rule 5.1(b) requires the supervisory lawyer to “make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.” Rule 5.1(c) makes the supervisory lawyer responsible for the other lawyer’s ethical misconduct under certain circumstances: (1) when the supervisory lawyer orders or ratifies the conduct, or (2) when the partner or supervisory lawyer knows or reasonably should know of the misconduct and fails to mitigate or take reasonable remedial action. Rule 5.3 is similar to Rule 5.1, except that it deals with these responsibilities toward nonlawyer assistants.
With respect to unauthorized practice, if the supervisory lawyer fails to meet his or her responsibilities under Rule 5.1 such that a subordinate lawyer commits unauthorized practice in the District of Columbia, the supervisory lawyer could also be found to have violated Rule 5.5 because of Rule 5.1(c). The supervisory lawyer would not be found to have violated Rule 5.5 personally, but he or she could be found to have violated Rule 5.1(c) and be responsible for the other lawyer’s misconduct under Rule 5.5. In a slightly different context, the court recently sanctioned a supervisory lawyer for failure to meet the requirements of Rules 5.1(b) and 5.1(c)(2) in a case involving ethical misconduct by a subordinate lawyer not licensed in the District of Columbia.8
Epstein: Liability under Rules 5.1 and 5.5 has major practical significance for D.C. Bar members. Almost all of the people who run afoul of Rule 49 are lawyers admitted in jurisdictions other than the District of Columbia, and almost all of these lawyers practice in partnership or association with D.C. Bar members. Therefore, whenever a lawyer in an organization engages in unauthorized practice, supervising and managerial lawyers may be liable under Rule 5.1 or 5.5.
There’s another wrinkle: both supervising lawyers and law firms may face liability under Rule 49. For the lawyers, this is in addition to responsibility under the Rules of Professional Conduct. The liability of the law firm or other legal organization arises exclusively under Rule 49. The Rules of Professional Conduct apply only to individual lawyers. In contrast, Rule 49 applies not only to individuals but also to groups of individuals, including law firms, for-profit and nonprofit private organizations, and government agencies. In the committee’s view, that means that law firms and other entities have an obligation to establish and enforce policies and procedures designed to ensure compliance with Rule 49 by their partners and employees.
Peters: In fact, one of the steps in our intake process for complaints is to look beyond the individual lawyer when we discover that the lawyer is not a member of the D.C. Bar, to see if there is a supervisory lawyer who is a member of the D.C. Bar who may have some responsibility for the alleged misconduct. Supervisory lawyers exist in many settings, not just in large firms. In the cases considered by the Committee on Unauthorized Practice of Law, who are the D.C. lawyers who get into trouble? Are they generally sole practitioners or lawyers who practice in small firms?
Epstein: No. We probably get as many complaints about lawyers in some of the largest and best-known firms in the city as we do about solo practitioners or lawyers in small firms. We regularly investigate big firms. And law firms are not the only organizations that we investigate. D.C. government agencies, private corporations, and nonprofit organizations also have to comply with Rule 49.
Peters: Is the Committee on Unauthorized Practice concerned about what law firms are doing—or aren’t doing?
Epstein: We certainly are. When they join a law firm or other legal organization, lawyers, and especially more junior associates, understandably rely on the organization to tell them what the rules are. For example, Rule 49, in one of the exceptions, requires lawyers who are permitted to practice while their applications for admission to the D.C. Bar are pending to disclose on all business documents that they are not members of the D.C. Bar and that they are being supervised by a D.C. Bar member. It’s the law firm, not the lawyer, that decides what goes on the web site and the stationery, and the firm should ensure that all firm documents comply with Rule 49. As a matter of fairness, the law firm shares and bears responsibility if the proper disclosures are not made.
Peters: Does that translate into any enforcement action by the committee?
Epstein: We take two kinds of enforcement action. First, the committee regularly contacts managing partners of law firms when we get information that a lawyer in their firm may not be complying with Rule 49. Cooperation has generally been excellent, and the firms promptly correct any problem we find. Second, when we enter into consent agreements to resolve Rule 49 issues, we ordinarily require not only the lawyer but also the law firm to be a party to the agreement, and the agreement obligates the law firm to ensure that it makes the required disclosures and provides the necessary supervision—and to implement effective compliance measures to prevent the problem from recurring.
This concludes part 1 of our conversation about unauthorized practice and supervisory liability. Part 2 will appear in the September issue.
- The court’s disciplinary jurisdiction and Bar Counsel’s authority also extend to all persons who have been suspended or disbarred by the District of Columbia Court of Appeals. D.C. Bar Rule XI, § 1(a). If a lawyer is suspended or disbarred by the District of Columbia Court of Appeals and thereafter engages in the practice of law in the District of Columbia, that practice is unauthorized. In those cases Bar Counsel normally will prosecute the errant lawyer for criminal contempt of the court’s order. In cases involving nonpayment of dues resulting in an administrative suspension, subsequent practice also is considered unauthorized, in violation of Rule 5.5 of the D.C. Rules of Professional Conduct and Rule 49 of the rules of the District of Columbia Court of Appeals, and may have disciplinary consequences.
- Rule 49(b) defines the following terms: person; practice of law; in the District of Columbia; hold out as authorized or competent to practice law in the District of Columbia; and committee.
- 805 A.2d 233 (D.C. 2002).
- Rule 5.5 of the District of Columbia Rules of Professional Conduct provides:
A lawyer shall not:
(a) Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(b) Assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
- In In re Harper, 737 A.2d 557 (Md. 1999), the Maryland Court of Appeals disbarred a D.C. lawyer not admitted in Maryland for unauthorized practice of law. The lawyer had established a second office there, solicited clients, accepted referrals in Maryland cases, and maintained trust and operating accounts for his Maryland office and cases. In essence the Maryland “disbarment” meant that the lawyer was permanently excluded from practicing law in Maryland. It is also a misdemeanor in Maryland (but not in the District of Columbia) to practice law without a license.
- In the reciprocal of the Maryland case described in note 5 above, In re Harper, 785 A.2d 311 (D.C. 2001), the District of Columbia Court of Appeals disbarred the lawyer. The lawyer failed to show cause before the Board on Professional Responsibility in response to the court’s order and did not raise any issue about reciprocal discipline until the case reached the court. His lack of participation constituted a waiver of his issues. The court found that identical reciprocal discipline, that is, disbarment, was appropriate because the lawyer had failed to represent clients diligently, failed to keep them informed about their cases, committed a criminal act that reflected adversely on his fitness as a lawyer, engaged in conduct prejudicial to the administration of justice, violated record-keeping requirements in the operation of his trust account, and made false representations to a client about his ability to practice law in Maryland and to settle a claim. The court viewed unauthorized practice as a serious matter and noted that the lawyer’s unauthorized practice in this case was not isolated or accidental, but was characterized by the Maryland court as deliberate and persistent.
In a reciprocal disbarment case from Maryland decided prior to Harper, however, In re Spiegelman, 694 A.2d 59 (D.C. 1997), the court adopted the recommendation of the board and declined to disbar Spiegelman, imposing instead a one-year suspension with fitness. Spiegelman argued, and the board concluded, that disbarment would be a grave injustice and would be unwarranted in the District of Columbia. The board noted:
The goal of the Maryland court . . . was to keep Respondent out of its court system. . . . The goal and interest of the District of Columbia discipline system is different. While Respondent should be disciplined here . . . , he has a license to practice here. The District of Columbia Court does not have the same interest in protecting itself and the District citizens from any practice by Respondent.694 A.2d at 62. The significant difference in the reciprocal sanction between these two cases was likely the result of Spiegelman’s participation in the reciprocal proceeding. Harper failed to participate in the reciprocal proceedings before the board, which resulted in application of the presumption in favor of identical reciprocal discipline and consequently his disbarment.
More recently, in In re Soto, 840 A.2d 1291 (D.C. 2004), decided on January 22, 2004, the court issued a public censure as functionally equivalent reciprocal discipline to a Maryland reprimand (subject to public disclosure but not to publication in the Atlantic Reporter) for unauthorized practice of law in Maryland. The attorney’s unauthorized practice, which involved signing documents affecting title to Maryland real estate while attesting that he was a member of the Maryland bar, was not considered as serious by the Maryland court as what had occurred in the Harper case. Our court noted that no private discipline exists in the District of Columbia and that accordingly it would impose a public censure with no limitation on its publication. Again, however, this involved a lawyer who did not contest the imposition of reciprocal discipline until the case reached the court and thus waived any issues he could have raised.
- D.C. Rules of Prof’l Conduct R. 5.5, Comment .
- In re Cohen, 847 A.2d 1162 (D.C. 2004) (supervisory lawyer held responsible under Rule 5.1(c)(2) for misconduct by a subordinate attorney who violated Rules 3.3(a) and 8.4(c) by filing a false pleading).
Disciplinary Actions Taken by the Board on Professional Responsibility
In re David Abrahamson. Bar No. 337279. May 20, 2004. The board recommends that the court suspend Abrahamson for six months, nunc pro tunc to August 28, 2001. Abrahamson entered a guilty plea in the United States District Court for the Eastern District of New York to a misdemeanor offense of unlawful receipt of compensation with the intent to defeat the purposes of the United States Department of Housing and Urban Development, in violation of 18 U.S.C. § 1012. The board found that Abrahamson violated Rules 3.4(a), 8.4(b), and 8.4(d) and committed a serious crime. Three members of the board concurred with the Rule 3.4(a) and 8.4(b) violations and the sanction recommendation, but dissented with regard to the Rule 8.4(d) violation.
In re J. Edward Agee. Bar No. 212274. May 14, 2004. The board directed Bar Counsel to issue Agee an informal admonition for failure to respond reasonably to Bar Counsel’s lawful demand for information, in violation of Rules 8.1(b) and 8.4(d).
In re Koteles I. Alexander. Bar No. 408969. May 6, 2004. The board recommends that the court disbar Alexander and order him to pay restitution to a decedent’s estate in the amount of $73,850, less any amount he can establish that he returned to the estate, with interest. Alexander, while retained to represent co–personal representatives of a decedent’s estate, improperly took $73,850 from the estate, intentionally damaged his clients, commingled estate funds with his own, intentionally misappropriated estate funds, failed to maintain complete records of entrusted funds, committed theft, engaged in conduct involving dishonesty, and seriously interfered with the administration of justice, in violation of Rules 1.3(b)(2), 1.15(a), 8.4(b), 8.4(c), and 8.4(d). In addition, Alexander engaged in dishonesty and tax evasion related to his manipulation of funds in and out of his law firm’s trust account, in violation of Rules 8.4(b) and 8.4(c), and knowingly made a false statement of material fact, engaged in dishonesty, and seriously interfered with the administration of justice in connection with a disciplinary matter, in violation of Rules 8.1(a), 8.4(c), and 8.4(d).
In re Nnamdi O. Anya. Bar No. 464648. June 1, 2004. The board recommends that the court disbar Anya for multiple ethical violations in 11 separate matters. In a child support matter Anya violated Rules 1.16(d), 3.3(a), 5.5(a), 7.1(a)(1), 8.4(c), and 8.4(d) when he gave his client a business card listing a Maryland office address without noting that he is not licensed to practice in Maryland; knowingly made false statements of material fact to a Maryland court and Maryland family division master; engaged in dishonesty; interfered with the administration of justice; engaged in the unauthorized practice of law; and failed to return $500 paid for an investigation that he never conducted. In a landlord–tenant matter Anya violated Rules 1.3(c), 1.4(a), and 1.16(d) by failing to act with reasonable promptness, to keep his client informed about the status of his matter, and to return an unearned fee. In a second landlord–tenant matter he falsified official court records in violation of Rules 4.1(a), 8.4(c), and 8.4(d). In a third landlord– tenant matter Anya violated Rules 4.1(a), 8.4(c), and 8.4(d) by falsely telling a deputy U.S. marshal that his client’s eviction had been stayed. Finally, in seven matters Anya failed to respond to Bar Counsel’s lawful demands for information and board orders in violation of Rules 8.1(b) and 8.4(d) and D.C. Bar Rule XI, § 2(b)(3).
In re John P. Coale. Bar No. 212662. April 22, 2004. In a reciprocal matter from Indiana, the board recommends that the court dismiss the proceeding against Coale. The board found that the misconduct in Indiana, improper solicitation in violation of Rules 7.1(b), 7.1(d)(3), 7.3(c), and 8.4(d) of the Indiana Rules of Professional Conduct, does not constitute misconduct in the District of Columbia. The Supreme Court of Indiana barred Coale, who was not a member there, from acts constituting the practice of law in Indiana until further order of that court.
In re Marsden S. Coates. Bar No. 449882. May 20, 2004. In a reciprocal matter from Maryland, the board recommends that the court impose identical reciprocal discipline and suspend Coates for one year. The Maryland Court of Appeals suspended Coates for misconduct based on a joint petition involving two different matters. In the first matter the Circuit Court for Baltimore City found that Coates failed to return his client’s numerous phone calls, to comply with his client’s reasonable requests for information, to supervise nonattorney members of his staff, and to advise his client of a scheduled deportation hearing where his client’s presence was required, in violation of Rules 1.1, 1.3, 1.4, and 5.3(b) of the Maryland Rules of Professional Conduct (MRPC). In the second matter Coates acknowledged that he maintained personal funds in his escrow account and that if a hearing took place, sufficient evidence could be produced to sustain the allegations that he violated MRPC 1.1, 1.2, 1.3, 1.4, and 1.15 and Maryland Rule 16-604.
In re Murray L. Deutchman. Bar No. 161729. April 15, 2004. In a reciprocal matter from Maryland, the board recommends that the court impose identical reciprocal discipline and disbar Deutchman. The Court of Appeals of Maryland 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 Lysle S. Follette III. Bar No. 453564. April 19, 2004. In three consolidated proceedings before the board, two original proceedings and one reciprocal matter from the United States District Court for the District of Columbia, the board recommends that the court suspend Follette for 90 days, with reinstatement conditioned on both a showing of compliance with all outstanding requests for information by Bar Counsel and fitness. In the two original proceedings, which involved four separate matters, Follette failed to cooperate with Bar Counsel’s investigations. The reciprocal matter, which involved Follette’s failure to respond to a show-cause order issued by the District Court in connection with a matter before the Committee on Grievances, resulted in Follette’s indefinite suspension by the District Court. The board found that Follette violated Rules 8.1(b) and 8.4(d) and D.C. Bar Rule XI, § 2(b)(3), in the original matters and that reciprocal discipline was appropriate.
In re David F. Luvara. Bar No. 371001. May 19, 2004. The board recommends that the matter be dismissed, that the court vacate its order of September 12, 2002, suspending Luvara for conviction of a “serious crime” and that Bar Counsel monitor the disposition of the pending criminal case and open an investigation pursuant to D.C. Bar Rule XI, § 6(a)(2), as appropriate. Luvara, who had pleaded guilty to a charge of criminal conspiracy in violation of Pa. Stat. Ann. tit. 18, § 903, in the Court of Common Pleas of Philadelphia County, notified the board that his guilty plea and conviction had been vacated and that he had been reinstated to the Pennsylvania Bar.
In re Stephen S. Millstein. Bar No. 20099. May 4, 2004. The board recommends that the court publicly censure Millstein and impose conditions of practice. Millstein, who was retained to represent a client in a personal injury matter, failed to maintain complete records regarding the disbursements he made from settlement proceeds and failed to furnish prompt notice of the settlement to a third-party medical provider who had an interest in the funds, in violation of Rules 1.15(a) and 1.15(b) and D.C. Bar Rule XI, § 19(f).
In re David D. Reynolds. Bar No. 446190. May 6, 2004. The board recommends that the court deny Reynolds’s petition for reinstatement.
In re Thomas J. Scanlon. Bar No. 140020. May 4, 2004. The board recommends that the court suspend Scanlon for 30 days, with reinstatement conditioned upon his filing a response to the disciplinary complaint and his completion of six hours of continuing legal education courses in the areas of legal ethics and professional responsibility. Scanlon failed to respond to requests for information from Bar Counsel and the board in violation of Rules 8.1(b) and 8.4(d) and D.C. Bar Rule XI, § 2(b)(3).
In re William A. Schainker. Bar No. 28480. April 21, 2004. The board recommends that the court disbar Schainker. Schainker was convicted in the United States District Court for the Eastern District of Michigan, Southern Division, of one count of conspiracy to defraud the United States and conspiracy to make false statements and to commit mail fraud and wire fraud, in violation of 18 U.S.C. §§ 371, 1001, 1341, and 1343, crimes that involved moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).
In re Eric Steele. Bar No. 410226. April 27, 2004. The board recommends that the court suspend Steele for 60 days and require him to make restitution of attorney’s fees to his client, with interest at the legal rate. This 60-day suspension should run concurrently with the three-year suspension with fitness recommended by the board in another disciplinary matter involving Steele already pending at the court. While representing a client in an employment matter, Steele failed to provide competent representation and neglected his client’s case, in violation of Rule 1.1(a); to provide skill and care commensurate with that generally afforded to clients in similar matters, in violation of Rule 1.1(b); to provide zealous and diligent representation, in violation of Rule 1.3(a); to act with reasonable promptness, in violation of Rule 1.3(c); to keep his client reasonably informed, in violation of Rule 1.4(a); to explain a matter to the extent reasonably necessary to permit his client to make an informed decision, in violation of Rule 1.4(b); and to take timely steps upon termination of the representation to the extent reasonably practicable to protect a client’s interest, in violation of Rule 1.16(d).
In re George E. Tillerson III. Bar No. 446661. April 21, 2004. The board recommends that the court disbar Tillerson. Tillerson was convicted in the Superior Court of the District of Columbia of first-degree theft, in violation of former D.C. Code §§ 22-3811 and 22-3812(a) (recodified as D.C. Code §§ 22-3211 and 22-3211(a) (2001)), a crime that involved moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).
In re Kenneth E. Wheeler. Bar No. 445227. May 10, 2004. The board recommends that the court disbar Wheeler. Wheeler, while handling a $10,000 retainer check made payable to another attorney, intentionally misappropriated funds, committed larceny, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rules 1.15(a), 1.15(b), 1.15(c), 8.4(2), and 8.4(3) of the Connecticut Rules of Professional Conduct, made applicable by D.C. Rule 8.5(b)(1) (choice of law). Connecticut Rules 8.4(2) and 8.3(3) are analogous to Rules 8.4(b) and 8.4(c) here. In addition, the board found that Wheeler knowingly made false statements to Bar Counsel in violation of Rule 8.1(a).
In re Robert M. Winick. Bar No. 115170. May 12, 2004. In a reciprocal matter combining three separate proceedings from Florida, the board recommends that the court impose identical reciprocal discipline, with minor exceptions, and suspend Winick for three years with fitness. The Supreme Court of Florida concluded that Winick had violated numerous disciplinary rules in multiple matters. Specifically, in two matters Winick failed to keep trust account records and commingled client and personal funds contrary to Florida ethical standards. In various probate matters Winick abandoned cases; failed to file necessary reports and documents or respond to a variety of court orders; violated Florida Bar rules governing treatment of unearned fees, which amounted to commingling in Florida; and failed to communicate with his clients. In addition, in multiple matters, Winick also failed to respond to an investigatory request for information from the Florida Bar. The board stated that Winick’s compliance with the Florida conditions, which included probation, restitution to clients, quarterly audits of trust account records, and continued medical treatment, would be appropriate for consideration as part of a fitness inquiry.
In re Ronald A. Wright. Bar No. 411438. April 14, 2004. In four consolidated cases before the board, the board recommends that the court suspend Wright for one year with fitness and that he pay restitution to one client in the amount of $300 plus interest at the legal rate. The board found that Wright neglected his clients, failed to keep them informed as to the status of their cases, failed to abide by their decisions, failed to provide a complete closing statement, intentionally failed to seek a client’s lawful objectives, intentionally harmed his client, failed to keep adequate records as to the source and disposition of the funds in his client trust account, and was dishonest in responding to requests for payment from his client’s medical providers, in violation of Rules 1.2(a), 1.3(a), 1.3(b), 1.3(c), 1.4(a), 1.4(c), 1.5(c), 1.15(a), 1.15(b), 1.15(c), and 8.4(c).
In re George G. Young III. Bar No. 422387. April 14, 2004. The board recommends that the court disbar Young. Young was convicted in the United States District Court for the Eastern District of Pennsylvania of 21 felony counts of mail fraud, false statements, and theft of government funds, in violation of 18 U.S.C. §§ 1341, 1001, and 641. The board concluded that because Young was convicted of mail fraud and theft of government property, crimes that involved moral turpitude per se, disbarment is mandatory under D.C. Code § 11-2503(a) (2001).
In re John P. Coale. Bar No. 212662. May 11, 2004. In a reciprocal matter from Indiana, the court dismissed the proceeding against Coale. The court determined that the misconduct in Indiana did not constitute misconduct in the District of Columbia.
In re Herbert Cohen. Bar No. 103408. April 29, 2004. The court suspended Cohen for 30 days. The matter arose from Cohen’s law firm’s representation of two clients in connection with a trademark matter. During the course of the representation, the two clients became adverse to each other, and the firm thereafter continued to represent one client without first obtaining the consent of the other. Cohen failed to keep a client informed or to respond to reasonable requests for information, in violation of Rule 1.4(a); engaged in a conflict of interest between existing clients, in violation of Rule 1.7(b); failed to protect a client’s interest and surrender papers upon withdrawal, in violation of Rule 1.16(d); and failed to make reasonable efforts to ensure his firm took effective measures to assure conformance with the rules, in violation of Rule 5.1(a). In addition, pursuant to Rule 5.1(c)(2), he was imputed to have violated Rules 3.3(a) (knowingly making a false statement to a tribunal) and 8.4(c) (engaging in dishonest conduct or misrepresentation) for acts committed by an associate of his firm who was not a member of the D.C. Bar.
In re Paul Drager. Bar No. 927616. April 8, 2004. In two consolidated reciprocal matters from New York, the court disbarred Drager. In the first New York proceeding Drager received a public censure for several counts of misconduct involving neglect, misrepresentation, and failure to cooperate with a grievance committee investigation. In the second New York proceeding Drager was disbarred for three instances of failure to cooperate with the state grievance committee’s investigations of complaints against him.
In re Jeffrey D. Grant. Bar No. 459317. May 27, 2004. In a reciprocal matter from New York, the court disbarred Grant. The Supreme Court of the State of New York, Appellate Division, Second Judicial Department, accepted Grant’s resignation and ordered him disbarred, with his name “stricken from the roll of attorneys and counselors-at-law.” Grant admitted that he could not successfully defend himself against nine allegations in three open disciplinary investigations. These investigations involved allegations of (1) misappropriating client funds; (2) withdrawing client funds from escrow accounts for personal use; (3) entering into business relationships with clients without disclosure of, and informed consent to, conflicts of interest; (4) failing to safeguard client property; (5) failing to pay or deliver promptly funds rightfully demanded by a client; (6) transferring funds entrusted to him as a fiduciary without requisite authorization; (7) submitting false testimony and documentation to the New York grievance committee; (8) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and (9) engaging in conduct prejudicial to the administration of justice. The board concluded that the New York allegations would violate our rules 1.5, 1.8, 8.4(c), and 8.4(d).
In re Steven Y. Lee. Bar No. 439458. April 8, 2004. The court disbarred Lee by consent.
In re Sheldon I. Matzkin. Bar No. 49155. May 27, 2004. The court denied Matzkin’s petition for reinstatement.
In re Thomas B. Morrison. Bar No. 398472. May 27, 2004. In a reciprocal matter from Maryland, the court publicly censured Morrison. The Court of Appeals of Maryland had reprimanded Morrison for several disciplinary violations relating to one client based on a joint petition in which he acknowledged violating Maryland Rules 1.1 (failure to provide competent representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to keep client reasonably informed), and 5.1(b) (failure of a supervisory lawyer to make reasonable efforts to ensure another lawyer conforms to the Rules of Professional Conduct).
In re Alan F. Post. Bar No. 172809. April 1, 2004. The court disbarred Post by consent.
In re Clifford J. Quinn. Bar No. 417521. May 13, 2004. The court disbarred Quinn based upon his conviction in the U.S. District Court for the District of Maryland on one count of conspiracy to defraud the United States, two counts of conflict of interest, two counts of solicitation of a bribe by public officials, and three counts of wire fraud, in violation of 18 U.S.C. §§ 371, 208, 216(a)(2), 201(b)(2), 1343, and 1346. Because conspiracy to defraud the United States and wire fraud are crimes that involve moral turpitude per se, disbarment is mandated by D.C. Code § 11-2503(a) (2001).
In re Todd A. Shein. Bar No. 421947. May 6, 2004. In a reciprocal matter from Maryland, the court indefinitely suspended Shein with the right to reapply for reinstatement upon a showing of fitness after five years or upon reinstatement in Maryland, whichever occurs first. Shein consented to his indefinite suspension in Maryland, wherein he resolved four disciplinary matters that were pending against him, including one in which he was found, after a hearing in the Circuit Court for Montgomery County, to have violated Rules 1.4(a), 1.15(b), 1.16(d), 8.1(b), and 8.4(d) of the Maryland Rules of Professional Conduct.
Informal Admonitions Issued by the Office of Bar Counsel
In re John E. Anderson. Bar No. 420236. February 27, 2004. Bar Counsel issued Anderson an informal admonition for violating Rules 1.1(a), 1.1(b), and 8.4(d) by failing to comply with court rules, resulting in the dismissal of his client’s case; upon reinstatement of the case, failing to ensure that his client paid a court-ordered sanction in a timely manner, resulting in an increased sanction; and failing to have witnesses on call and available to testify as the court ordered.
In re Deborah D. Boddie. Bar No. 418620. May 17, 2004. Bar Counsel issued Boddie an informal admonition for violating Rules 1.1(b), 1.7(b)(4), and 8.4(d) by selling real property without first seeking or obtaining the court’s approval for the transaction, obtaining court approval to waive the statutory requirement, or subsequently seeking court ratification of the sale, while serving as the limited guardian of an incompetent individual and as the successor personal representative in a related probate matter.
In re Paul D. Hunt. Bar No. 447182. April 2, 2004. Bar Counsel issued Hunt an informal admonition for violating Rules 1.1(a), 1.1(b), and 1.4(b) by incompetently attempting to seal his client’s arrest record in a criminal matter.
In re Samuel N. Omwenga. Bar No. 461761. March 30, 2004. Bar Counsel issued Omwenga an informal admonition for his conduct relating to two separate matters. In one matter Omwenga violated Rule 1.5(e) by failing to provide a writing consistent with requirements concerning fee splitting for attorneys not in the same law firm. In a second matter Omwenga violated Rule 1.16(d) by failing to surrender the client’s file after the termination of the representation and Rules 8.4(a) and 1.8(i) for attempting to impose a lien on a client file.
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.