Washington Lawyer

Bar Counsel: What, Me? Incompetent?

From Washington Lawyer, July/August 2005

By Gene Shipp and Asma Naeem

Illustration by Mick Wiggins In the this-could-never-happen-to-me category of ethical misconduct, consider the case of John Shorter, an extremely experienced criminal attorney who had practiced law for more than 40 years and tried over 1,000 cases.

In 1995 Shorter took on two murder cases pro bono at the request of a judge seeking a veteran who would be able to navigate himself through the copious documents and complicated issues presented by a multi-codefendant case. Despite the many trials under his belt, this skilled litigator was unprepared on the day of trial. He testified to the hearing committee in the disciplinary proceeding:

When I came to court . . . I had a sinking feeling, I knew that I was not ready to try the case. First off, I hadn’t had the opportunity to spend as much time working on the case, I had not had an opportunity to arrange to see the witnesses or talk to the witnesses.[1]
Shorter was publicly censured for his lack of preparedness.[2] In one fell swoop 40 years of reputable practice were replaced with an entry in the Atlantic Reporter, Second Series under his name for incompetence.[3]

So what happened? Shorter admitted that he was “quite overwhelmed” with his workload and that, despite several pretrial conferences in which the judge asked for assurances of readiness, he had not told the court and the prosecutor that he was unprepared.

Lack of preparation is one aspect of incompetence that is set forth in Rule 1.1 of the District of Columbia Rules of Professional Conduct. Specifically, the rule states:

(1) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
(2) A lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters. (Emphasis added.)

The various prongs of Rule 1.1, then, are failure to apply legal knowledge or skill, lack of thoroughness or preparation, and failure to maintain competence (that is, once you have gained an expertise in a certain area, you must sustain that level of knowledge and skill). Being an expert is not enough if you are unprepared at any given moment.

A common misinterpretation of the rule is that it discourages recently admitted members of the Bar or otherwise experienced lawyers from taking on new kinds of cases. As Comment [2] to Rule 1.1 explains, however, “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.”

With this proviso in mind, let us look at In re Sumner.[4] In this case the respondent, who had previously worked in several law firms for approximately seven years, decided to start his own practice and take on postconviction relief and criminal appeals cases. He was not experienced in this forum of law, but according to the comment cited above, his decision to take on these cases was entirely permissible. Even though Sumner started out fine by filing a timely notice of appeal, he then unfortunately failed to order the trial transcripts, never filed a motion for a new trial, never sought Criminal Justice Act certification, and, finally, failed to file a brief with the District of Columbia Court of Appeals despite two orders to do so.

Eventually, the Court of Appeals appointed a new counsel, as the matter had been unable to proceed for six months and the defendant had been incarcerated throughout the course of the proceedings. Finding that he violated several rules, including Rule 1.1, the court agreed with the Board on Professional Responsibility, adopting the board’s findings:

There can be no doubt that Respondent’s abandonment of Mr. Marshall, coupled with his lack of experience on criminal appeals and the absence of efforts to compensate for his lack of experience, breached Respondent’s obligations to provide ‘competent representation to a client’ and to serve a client ‘with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters. . . .’[5]

Ultimately, Sumner was suspended for 30 days for his misconduct.

As In re Shorter and In re Sumner illustrate, incompetence can happen to attorneys with a significant amount of experience. In other words, it can happen to attorneys who think that, because they are no longer inexperienced and are comfortable in their day-to-day practice, they are immune to lapses of judgment and the possibility of not being on top of their game.

So what can you do to ensure that you are complying with Rule 1.1? Here are some steps you can take:

(1) If you have any misgivings about taking on a new case in which you have no experience or already have too much on your plate, acknowledge those thoughts and seek advice from a colleague on what you should do. This moment of reflection usually helps you to decide what you can truly handle.

(2) If you feel overwhelmed, communicate this to the concerned parties, ask for more time, seek out help, and/or withdraw in an ethical manner to protect your client.

If more attorneys followed these steps, they could save themselves from being the subject of a possible Bar Counsel investigation. In fact, Office of Bar Counsel statistics show that incompetence (along with neglect under the rubric of Rule 1.3) comprises one-third of our docketed investigations—our largest category of docketed cases. Indeed, incompetence is a significant concern, because a client who seeks legal help and has an incompetent lawyer sees the judicial system as a failure—and this hurts us all.

Remember, when you are in over your head in a case, you risk injuring not only your clients and their interests, but your reputation as well. Better to use good judgment as to your capabilities than to have your name in the Atlantic Reporter for all your friends and family to admire.

Notes
[1] In re Shorter, Bar Docket No. 194-96, at 5 (Oct. 31, 1997).
[2] 707 A.2d 1305 (D.C. 1998).
[3] Shorter had a previous disbarment for a tax conviction that was completely unrelated to the practice of law. In re Shorter, 570 A.2d 760 (D.C. 1990). He was reinstated based upon his proof of fitness. In re Shorter, 603 A.2d 462 (D.C. 1992).
[4] 665 A.2d 986 (D.C. 1995).
[5] Id. at 988–89 (emphasis added).

Wallace E. “Gene” Shipp Jr. is bar counsel to the District of Columbia Court of Appeals. Asma Naeem is assistant bar counsel for intake.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Dorsey Evans. Bar No. 3939. May 31, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Evans for six months, with 90 days of the suspension stayed in favor of a one-year probationary period, during which time Evans would be required to work with a practice monitor. The board also recommends that Evans be required to take six hours of continuing legal education. Evans, while retained to represent a client in connection with a real estate loan and thereafter represent that client as co–personal representative in a probate matter, failed to provide competent representation and serve his client with the skill and care generally required, failed to acquire the informed consent of his client regarding a potential conflict of interest, and engaged in conduct that seriously interfered with the administration of justice. Rules 1.1(a), 1.1(b), 1.7(b)(4), and 8.4(d).

In re Brian O. Godette. Bar No. 433283. May 2, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Godette for 30 days with conditions that prior to readmission he be required to complete six hours of continuing legal education courses in ethics and that he respond to Bar Counsel’s investigation of an underlying ethical complaint. The board found that Godette failed to cooperate with Bar Counsel’s investigation and failed to comply with a board order compelling a response. Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re John J. Harkins. Bar No. 190215. May 25, 2005. The majority of the Board on Professional Responsibility directed that the disciplinary proceedings against Harkins be dismissed. Harkins was convicted in the Superior Court of the District of Columbia of misdemeanor sexual abuse. Three members of the board concurred and dissented in part, finding that Harkins’s criminal act violated Rule 8.4(b) and recommending a sanction of public censure.

In re Robert P. Kaufman. Bar No. 375715. April 22, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals publicly censure Kaufman for his failure to cooperate with Bar Counsel’s investigation and failure to comply with a board order compelling a response. Kaufman appeared and participated before a hearing committee in the matter. Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re Julia A. Soininen. Bar No. 448700. May 12, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Soininen for reckless misappropriation, stay the execution of the disbarment based upon a showing of Kersey mitigation, and place Soininen on three years’ probation subject to specified terms and conditions. Soininen failed to provide competent representation, failed to serve a client with skill and care, charged an unreasonable fee, engaged in reckless misappropriation, and engaged in conduct that seriously interfered with the administration of justice in connection with her service as guardian and conservator to a client and the client’s estate between 1997 and 2000. Rules 1.1(a), 1.1(b), 1.5(a), 1.15(a), and 8.4(d).

In re Billy L. Ponds. Bar No. 379883. April 25, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals publicly censure Ponds. Ponds disclosed confidential client information while representing a client in the United States District Court for the District of Maryland, in violation of Rule 1.6 of the Maryland Rules of Professional Conduct.

Reciprocal Matters
In re John Robert Fuchs. Bar No. 411506. April 27, 2005. In a reciprocal matter from California, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline in that Fuchs be suspended for one year, stayed in favor of two years of unsupervised probation subject to the conditions of probation imposed in California, with a requirement that Fuchs provide proof that he has complied with the California probation. The Supreme Court of California disciplined Fuchs for filing a civil claim against a former client after signing a settlement and release agreement releasing the former client from claims.

In re John L. Gizzarelli Jr. Bar No. 183194. April 5, 2005. In a reciprocal matter from Massachusetts, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally identical reciprocal discipline and suspend Gizzarelli for five years with fitness. The Massachusetts Supreme Judicial Court for Suffolk County indefinitely suspended Gizzarelli for a series of ethical violations related to a single client including lack of diligence, failure to keep a client reasonably informed, failure to deposit and maintain client funds in a trust account, and failure to refund the unearned portion of a retainer fee.

In re Richard L. Gruber. Bar No. 314765. May 31, 2005. In two consolidated reciprocal matters from New Jersey, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose reciprocal discipline and disbar Gruber. In the first reciprocal matter the Supreme Court of New Jersey reprimanded Gruber for neglecting his client’s real estate matter and failing to cooperate with disciplinary authorities. In the second reciprocal matter the court disbarred Gruber for misappropriating client funds.

In re Charles R. Knight. Bar No. 411670. April 22, 2005. In a reciprocal matter from Connecticut, the Board on Professional Responsibility imposed identical reciprocal discipline and reprimanded Knight. The Reviewing Committee of the Connecticut Statewide Grievance Committee publicly reprimanded Knight for improperly disclosing confidential psychological records.

In re Andrew M. Steinberg. Bar No. 350983. May 2, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Steinberg for 60 days with restitution to the client and interest at the legal rate. In addition, the board recommends that the sanction imposed in this case run consecutively with the sanction imposed by the D.C. Court of Appeals against Steinberg wherein he received a 30-day suspension with proof of fitness. While representing a client in a domestic matter, Steinberg failed to provide competent representation in a divorce matter, including drafting a separation agreement that conflicted with his client’s objectives, engaged in neglect and unreasonable delay, and failed to consult with his client. Rules 1.1(a), 1.1(b), 1.2(a), 1.3(a), 1.3(c), and 1.4(a).

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Nnamdi O. Anya. Bar No. 464648. April 14, 2005. The D.C. Court of Appeals disbarred Anya and ordered restitution to two former clients. Anya violated the following rules: 1.3(c) (requiring reasonable promptness in representing a client), 1.4(a) (keeping a client reasonably informed about the status of a matter and complying with reasonable requests for information), 1.16(d) (taking timely steps to protect a client’s interest upon termination, including the refund of any unearned advances), 3.3(a) (requiring candor toward the tribunal), 4.1(a) (knowingly making a false statement of material fact or law to a third person); 5.5(a) (practicing law in another jurisdiction in violation of its regulations), 7.1(a)(1) (making false or misleading communications about the lawyer’s services), 8.1(b) (failing to respond reasonably to a lawful demand by disciplinary authority for information), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct seriously interfering with the administration of justice), as well as D.C. Bar R. XI, § 2(b)(3) (failing to comply with an order of the court or board).

In re T. Carlton Richardson. Bar No. 198523. May 5, 2005. The D.C. Court of Appeals denied Richardson’s petition for reinstatement.

In re William A. Schainker. Bar No. 28480. April 14, 2005. The D.C. Court of Appeals disbarred Schainker based upon his guilty plea to one count of conspiracy both to defraud the United States and to make false statements and commit mail fraud and wire fraud, in violation of 18 U.S.C. §§ 371, 1001, 1341, and 1343.

In re Kenneth E. Wheeler. Bar No. 445227. April 7, 2005. The D.C. Court of Appeals disbarred Wheeler based upon his conviction in the Superior Court of Hudson County, New Jersey, of misapplication of entrusted property, in violation of N.J. Stat. § 2C:21-15.

Reciprocal Matters
In re Donna C. Aldridge. Bar No. 83600. April 21, 2005. In a reciprocal matter from Maryland, the D.C. Court of Appeals suspended Aldridge for an indefinite period pursuant to D.C. Bar R. XI, § 13(g), based on her disability. The Court of Appeals of Maryland indefinitely suspended Aldridge based on a joint petition acknowledging that certain psychological ailments had directly contributed to disciplinary violations Aldridge committed between 1986 and 1993.

In re Paul T. Demos II. Bar No. 438677. May 26, 2005. In a reciprocal matter from Arizona, the D.C. Court of Appeals imposed nonidentical reciprocal discipline and disbarred Demos. The United States District Court for the District of Arizona struck Demos’s name from the roll of attorneys for misrepresentation and dishonesty with respect to his application for admission in the Arizona courts.

In re Bridgette M. Harris-Smith. Bar No. 413256. April 14, 2005. In a case involving reciprocal matters from the United States Bankruptcy Court for the Eastern Division of Virginia and the Court of Appeals of Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Harris-Smith. The Bankruptcy Court permanently barred Harris-Smith from practice and ordered her to refund $600 in attorney fees and pay a monetary sanction of $1,500 for failing to appear for several hearings, including the show-cause hearing concerning her own disbarment. The Maryland Court of Appeals disbarred Harris-Smith based on a joint petition by consent for having engaged in and been convicted of the unauthorized practice of law in Maryland with two Maryland residents, in violation of Rules 5.5 and 8.4(b) of the Maryland Rules of Professional Conduct.

In re Stuart E. Hendin. Bar No. 424723. May 5, 2005. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Hendin. The New York State Supreme Court, Appellate Division, Third Judicial Department, disbarred Hendin for misconduct committed in the course of his legal practice in Ottawa, Ontario, Canada, based upon his misappropriation of approximately $108,000. Hendin resigned his Canadian license.

In re Cheryl P. Vural. Bar No. 417259. May 26, 2005. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed functionally identical discipline and suspended Vural for one year and 60 days, provided that after the first 60 days the remainder of the suspension can be stayed if Vural resumes practicing law and notifies Bar Counsel in advance. Bar Counsel may require Vural to identify another attorney to monitor her practice. The Maryland Court of Appeals, upon consent, suspended Vural from the practice of law for 60 days and directed her then to provide Maryland Bar Counsel with verification that she had asked to be placed on retired/inactive status with the Maryland Client Protection Fund, and if she seeks to resume active status within one year from the date she is placed on retired/inactive status, to notify Maryland Bar Counsel in advance of her intention, at which time Maryland Bar Counsel may require Vural to identify another attorney who will monitor her practice. Following entry of a divorce judgment on behalf of her client, Vural failed to pursue with diligence her client’s interest in obtaining a qualified domestic relations order authorizing the transfer of a portion of the client’s ex-spouse’s interest in his retirement plans to the client.

Informal Admonition Issued by the Office of Bar Counsel
In re Geoffrey M. Cooper. Bar No. 132423. March 30, 2005. Bar Counsel issued Cooper an informal admonition for violating Rule 5.5(a) by practicing law while administratively suspended for nonpayment of bar dues.

In re Mark A. Cotton. Bar No. 466798. March 17, 2005. Bar Counsel issued Cotton an informal admonition for violating Rules 1.1(b), 1.3(b)(1), 1.3(c), 1.16(d), 5.5(a), and 8.4(d) while serving as a court-appointed attorney in two criminal appellate cases. In one case the court vacated Cotton’s appointment when he failed to comply with court orders to file a docketing statement and failed to turn over his file to successor counsel. In a second case Cotton filed a brief, but did not do so in a timely manner. In addition, Cotton failed to notify the court of his change of address during a pending case and practiced law while administratively suspended for nonpayment of bar dues.

In re Patsy B. Dix. Bar No. 417537. September 7, 2004. Bar Counsel issued Dix an informal admonition for violating Rule 1.4(a) by failing to communicate while representing her client in a bankruptcy matter.

In re Lorenzo C. Fitzgerald Jr. Bar No. 390603. May 6, 2005. Bar Counsel issued Fitzgerald an informal admonition for violating Rule 8.4(d) by failing to respond in a timely manner to a Bar Counsel complaint and the board order compelling a response.

In re Irwin J. Fredman. Bar No. 392066. May 9, 2005. Bar Counsel issued Fredman an informal admonition for violating Rule 1.5(b) by failing to provide a writing setting forth the basis or rate of his fee while retained to represent a client in an immigration matter.

In re Selig Solomon. Bar No. 343210. May 10, 2005. Bar Counsel issued Solomon an informal admonition for violating Rules 5.5(a) and 8.4(d) by filing a client’s civil complaint in court while on inactive status with the District of Columbia Bar.

In re R. Kenly Webster. Bar No. 148833. March 29, 2005. Bar Counsel issued Webster an informal admonition for violating Rule 1.16(d) when he notified his clients of his firm’s intention to withdraw on the last business day before a scheduled hearing and did not take any steps to protect his clients’ interests at the hearing, such as seeking a continuance.

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.