Washington Lawyer

Bar Counsel: Truthfulness in Litigation

From Washington Lawyer, July/August 2006

By Asma Naeem

barcounsel One of the many memorable scenes from the 1992 film My Cousin Vinny is when Joe Pesci’s character, Vinny Gambini, appears in court for the arraignment of his cousin, who has been charged with murder. Vinny, who only recently passed the bar (after six attempts), is unfamiliar with the ways of the courtroom and quickly infuriates the judge, played by Fred Gwynne:

Judge Haller: The next words out of your mouth better be “guilty” or “not guilty.” I don’t want to hear commentary, argument, or opinion. If I hear anything other than “guilty” or “not guilty,” you’ll be in contempt. I don’t even want to hear you clear your throat. Now how do your clients plead?
Vinny: I think I get the point.
Judge: No, I don’t think you do. You now are in contempt of court. Would you like to go for two counts contempt?
Vinny: Not guilty.

Indeed, contempt appears to be a common sanction for attorneys who do not follow judges’ orders or cause difficulties that affect the administration of the court.[1] However, transgressions before a tribunal that implicate an attorney’s moral character, such as dishonesty and suborning perjury, are no laughing matter, for disciplining bodies must become involved and the sanctions are much more serious.

Rule 3.3(a)(1) of the District of Columbia Rules of Professional Conduct prohibits an attorney from knowingly making a false statement of material fact to a tribunal. In cases involving this rule, the District of Columbia Court of Appeals has typically issued suspensory sanctions.[2]

For example, in In re Owens[3] the respondent, who had just finished testifying about prior counsel’s negligence in a Merit Systems Protection Board matter, was ordered to leave the hearing room by the administrative law judge so that her co-counsel could testify about the same issue. Once outside, the respondent placed her ear to the door in an attempt to listen to her colleague’s testimony, not knowing that she was in view of a court employee and a video camera. When later asked about this by the judge in a teleconference, the respondent, who had been placed under oath, replied that she had not been listening at the door.[4] A few minutes later, the respondent called back and admitted the truth to all parties.

In arriving at its determination, the court noted, “Respondent’s false statements were motivated by her desire to avoid embarrassment to herself and protect her client from any adverse consequences of her misconduct.”[5] Yet, despite such possible mitigating factors, the court still suspended the respondent from the practice of law for 30 days.[6]

The false statement in Owens was an oral utterance. The attorneys in In re Uchendu[7] and In re Cleaver-Bascombe,[8] however, filed false documents with the court.

Representing personal representatives and guardians in probate matters, the respondent in Uchendu had signed his clients’ names on documents that had been filed with the probate court, sometimes noting his initials near the signatures and sometimes notarizing the documents, even though he had signed the documents himself and the clients had not verified the contents of the documents. Denying the respondent’s assertion that the documents were accurate, the court noted that “a falsely signed document that is submitted to a court is a false representation because the signature is misleading, even if the substance of the document is accurate.”[9] Moreover, despite the fact that the respondent did not have malicious intent, the court held that he had committed a dishonest act and ordered that he be suspended from the practice of law for 30 days, along with the condition that he attend continuing legal education courses.[10] In other words, because the attorney knew that he was making a false submission to the court, he had violated Rule 3.3(a)(1), even though he did not have a specific intent to defraud his clients or the court.[11]

Unlike the respondent in Uchendu, the attorney in Cleaver-Bascombe made false submissions to the court for personal gain by inflating the number of hours that she worked. Specifically, she submitted a Criminal Justice Act (CJA) voucher, completed under the penalty of perjury, for work that the hearing committee determined she never performed.[12] The court rejected the respondent’s argument that the District of Columbia courts’ Financial Operations Division merely carried out administrative functions and agreed with the Board on Professional Responsibility that the division was a tribunal as defined in the terminology section of the rules, in that it was a “body or individual authorized by law to render a decision of a judicial or quasi-judicial nature. . . .”[13] In its opinion the court questioned the respondent’s “fitness to practice,” and stated that paying CJA attorneys for their work “is based upon the assumption that members of our Bar are honorable men and women who will accurately report the work that they have done, and who will not demean their noble calling and bring disgrace to themselves and to their profession by swearing that they performed work that they did not do.”[14]

Dishonesty before the tribunal may also occur when an attorney suborns perjury—a complex ethical issue that is discussed in at least three different rules.[15] Rule 3.3(a)(2) provides one of the more straightforward prohibitions, stating, “A lawyer shall not knowingly counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent. . . .”

In direct violation of this rule, the respondent in In re Corrizzi,[16] a personal injury lawyer, told two of his clients to conceal his quid pro quo relationship with two chiropractors. Following their attorney’s directions, both clients testified falsely at their depositions that they had located their chiropractors through the Yellow Pages. Disbarring the respondent for numerous violations, the court described the ramifications of the respondent’s misconduct as “the virtual destruction of his clients’ cases and their exposure to possible criminal prosecution. . . .”[17]

Litigation may be an area of practice where showmanship and aggressive behavior prevail. Nonetheless, the duty to be honest before a tribunal is one of the fundamental aspects of being an officer of the court. Attorneys who breach this duty of candor impugn the integrity of the judicial system, harm their clients, and risk having their license to practice law suspended.

Notes
[1] Pursuant to Rule 11 of the Superior Court Rules of Civil Procedure, the court may sanction the attorney sua sponte or on motion by opposing counsel for conduct that violates Rule 3.1 (prohibiting the filing of frivolous suits) of the D.C. Rules of Professional Conduct. Cf. In re Spikes, 881 A.2d 1118 (D.C. 2005) (D.C. Court of Appeals suspended attorney for 30 days for filing a defamation suit based on a complaint to the Office of Bar Counsel that was protected by absolute privilege under D.C. Bar Rule XI, § 19(a), explaining that “frivolous actions ‘waste the time and resources of this court, delay the hearing of cases with merit and cause appellees unwarranted delay and added expense,’” id. at 1127). Similarly, the usual recourse for Rule 3.2 infractions (prohibiting delaying the court) is contempt of court. See In re Roxborough, 663 A.2d 553 (D.C. 1995) (summary contempt and $150 fine for being late for two matters in Superior Court); In re Thompson, 454 A.2d 1322 (D.C. 1982); In re Siracusa, 455 A.2d 663 (D.C. 1982); In re Alexander, 466 A.2d 447 (D.C. 1982); In re Gatehouse, 415 A.2d 1388 (D.C. 1980).
[2] See In re Lenoir, 585 A.2d 771 (D.C. 1991) (18-month suspension for numerous violations); In re Reback, 513 A.2d 226 (D.C. 1986) (en banc) (six-month suspension for several violations); In re Rosen, 481 A.2d 451 (D.C. 1984) (30-day suspension); see also In re Steele, 868 A.2d 146 (D.C. 2005) (respondent suspended for three years with fitness for numerous violations including Rule 3.3(a)(1) in fabricating a subpoena as an excuse for failing to appear at a hearing).
[3] 806 A.2d 1230 (D.C. 2002).
[4] Immediately after the respondent was spotted attempting to eavesdrop, the administrative law judge summoned the respondent into the hearing room and asked her whether she had been trying to listen at the door. The respondent, who was not under oath, replied in the negative.
[5] Id. at 1231.
[6] The court held that the respondent also violated Rules 8.4(c) (dishonesty) and 8.4(d) (interference with the administration of justice). Id.
[7] 812 A.2d 933 (D.C. 2002).
[8] 892 A.2d 396, 404 (D.C. 2006) (remanded to the Board on Professional Responsibility to determine intentionality of dishonesty and sanction).
[9] Uchendu, 812 A.2d at 939 (citing In re Reback, 487 A.2d 235, 239 (D.C. 1985)).
[10] The respondent maintained that he had permission from his clients to sign on their behalf and submitted affidavits asserting this to the hearing committee. Id. at 935. Regardless, the court held that D.C. Code § 20-102(a) (2001) and the Superior Court Probate Rules mandated that verifications in the probate documents had to be personally signed by the representative or the guardian. Id. at 937.
[11] Id. at 939; see In re Schneider, 553 A.2d 206, 209 (D.C. 1989) (finding dishonesty in false client expense reports that the attorney submitted to recover compensation for undocumented expenses, even though the total amount requested by the attorney was accurate).
[12] The Criminal Justice Act is codified in D.C. Code § 11-2601, et seq. (2001).
[13] Cleaver-Bascombe, 892 A.2d at 403. In its discussion of the notion that the Financial Operations Division could be construed as a tribunal, the court also included Bar Counsel’s argument that the Criminal Justice Act requires attorneys to submit vouchers for compensation to “the Superior Court.” Id. (citing D.C. Code § 11-2604(d)).
[14] Id. at 398.
[15] See D.C. Rules of Prof’l Conduct R. 3.3(a)(2), 3.3(b), 3.4(b); see also id. R. 3.3 cmt. 7.
[16] 803 A.2d 438 (D.C. 2002).
[17] Id. at 442–43.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Timothy Brown. Bar No. 366743. May 22, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Brown for misappropriation of client funds as well as other violations in two matters during the late 1980s and early 1990s. Because Brown’s alcohol addiction was the substantial cause of the misconduct and because Brown is now substantially rehabilitated, the board further recommends that the court stay his disbarment and continue him on the probation that went into place when he was reinstated to practice after his court-ordered disability suspension was lifted. DR 1-102(A)(4), 9-103(A), and 9-103(B) and Rules 1.3(a), 1.3(c), 1.4(a), 1.15(a), 1.15(b), 1.15(d), 1.16(d), 5.5(a), and 8.4(c).

In re Allan Ebert. Bar No. 444181. May 9, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Ebert by consent.

In re Thomas Mooers. Bar No. 429538. May 22, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Mooers for his intentional and dishonest misappropriation of entrusted funds. The board further recommends that the disbarment be stayed because Mooers suffered from a major depression and anxiety at the time of his misconduct from which he has substantially recovered. The board further recommends that Mooers be placed on three years’ probation subject to the conditions that (1) he continue in medical treatment; (2) his treating doctor files regular written reports certifying that he remains in treatment and is following the prescribed course of treatment, and his depression remains under control; and (3) if he abandons treatment or refuses to follow the treatment prescribed by his psychiatrist, he authorizes his psychiatrist to advise the board and the Office of Bar Counsel of this change. Rules 1.15(a) and 8.4(c).

In re Carren S. Oler. Bar No. 362582. May 3, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Oler by consent.

In re John A. Scungio. Bar No. 428404. April 4, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Scungio by consent.

In re Bernard T. Thabault. Bar No. 376137. May 3, 2006. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Thabault by consent.

Reciprocal Matters
Jill Johnson Pennington. Bar No. 362592. April 25, 2006. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose nonidentical reciprocal discipline and suspend Pennington for 30 days, nunc pro tunc to September 13, 2005. The Maryland Court of Appeals disbarred Pennington based upon a finding of “misrepresentations[s] and ‘deceitful conduct.’” The Maryland Court of Appeals found that Pennington violated Maryland Rules 1.4, 1.7(b), 1.16(a), and 8.4(c) and (d).

In re James W. Sherman. Bar No. 85142. May 31, 2006. In a reciprocal matter from Connecticut, the Board on Professional Responsibility imposed identical reciprocal discipline and issued Sherman a board reprimand. The Connecticut Superior Court, Hartford Judicial District, affirming an order issued by the Connecticut Statewide Grievance Committee, reprimanded Sherman for breaching his duty to take reasonable, practicable steps to protect a client’s interests in ongoing litigation by failing to advise the client adequately of (1) the impact of termination of the legal representation upon the status of the lawsuit and (2) the implications of the client failing to obtain new counsel or file a pro se appearance.

In re Robert J. Weisbard. Bar No. 424616. May 31, 2006. In a consolidated reciprocal matter from Colorado, the Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Weisbard. In three separate proceedings within a two-year period, the Colorado disciplinary authorities suspended Weisbard twice for a period totaling 36 months and subsequently disbarred him for misconduct in connection with 15 client matters. Weisbard’s misconduct involved a pattern of neglect of client matters, coupled with dishonesty, failures to account, improper withholding of client files, and disobedience of court orders.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Allan Ebert. Bar No. 444181. May 25, 2006. The D.C. Court of Appeals disbarred Ebert by consent.

In re Dorsey Evans. Bar No. 3939. April 27, 2006. The D.C. Court of Appeals suspended Evans for six months, with the requirement that he complete six hours of continuing legal education classes in probate law and legal ethics; that the final 90 days of his suspension be stayed on the condition that he agree to be placed on probation for a period of one year; that during the probationary period he be subject to oversight by a practice monitor; and that failure to cooperate with the practice monitor shall constitute a violation of his probation resulting in the imposition of the stayed portion of his suspension. Evans, as owner of a title company, agreed to assist a customer in handling a real estate closing that would permit her to borrow against the equity in her house. When he learned that his customer did not own the house, but might have an interest in some part of it as heir to her former husband’s estate, Evans agreed to petition the probate court to have his customer appointed as co-personal representative of her former mother-in-law’s estate. Then within days after her appointment, and before the six-month period for claims had expired, Evans assisted his customer in transferring title to all of the estate’s property to herself, ignoring the rights of one of two direct heirs to 50 percent of the assets, so the loan could be made and the house pledged as collateral for the loan. At the loan closing, Evans paid his legal fees out of the loan proceeds without first obtaining permission from the probate court for the amount of his fee. Rules 1.1(a), 1.1(b), 1.7(b)(4), and 8.4(d).

In re John J. Harkins. Bar No. 190215. May 18, 2006. The D.C. Court of Appeals suspended Harkins for 30 days for his conviction of misdemeanor sexual abuse. The court found that crimes of a sexual nature violate an attorney’s ethical obligation under Rule 8.4(b).

In re Carren S. Oler. Bar No. 362582. May 25, 2006. The D.C. Court of Appeals disbarred Oler by consent.

In re James S. Powell. Bar No. 427084. May 4, 2006. The D.C. Court of Appeals suspended Powell for one year with fitness for knowingly making a false statement of material fact in connection with a bar admission application; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that seriously interferes with the administration of justice. While subject to an interim suspension by the D.C. Court of Appeals based on a criminal conviction, Powell filed a sworn application for admission to the Bar of the United States District Court for the District of Colorado wherein he failed to disclose his admission to practice before the District of Columbia or his interim suspension. Rules 8.1(a), 8.4(c), and 8.4(d).

In re John A. Scungio. Bar No. 428404. May 11, 2006. The D.C. Court of Appeals disbarred Scungio by consent.

In re Edward L. Tezak. Bar No. 429121. May 4, 2006. The D.C. Court of Appeals disbarred Tezak based on his conviction in the United States District Court for the Western District of Washington, following the entry of a guilty plea for the offense of wire fraud, in violation of 18 U.S.C. § 1343, and money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B). Disbarment is mandated under D.C. Code § 11-2503(a) for Tezak’s conviction of wire fraud.

Reciprocal Matters
In re Richard G. Cervizzi. Bar No. 938282. April 27, 2006. In a reciprocal matter from Maine, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Cervizzi. The Supreme Judicial Court of Maine disbarred Cervizzi for failing to respond to inquiries by its board and Bar Counsel; engaging in conduct unworthy of an attorney; violating, circumventing, or subverting the Maine Bar Rules; engaging in illegal conduct that adversely affects the lawyer’s honesty, trustworthiness, or fitness as a lawyer; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; engaging in conduct prejudicial to the administration of justice; failing to notify clients and attorneys or adverse parties of his suspension or disbarment and failing to file the required affidavit of compliance with the clerk and the board; failing to act promptly to provide files requested by Bar Counsel and ordered by the court; neglecting, refusing, or delaying to return files; and knowingly making false statements, concealing information legally required to be revealed, or participating in the creation or preservation of false evidence.

In re Stanley Kirkland Foshee. Bar No. 420761. April 27, 2006. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Foshee for three years, with reinstatement subject to his satisfaction of the same conditions applicable to his reinstatement in Virginia. The Virginia State Bar Disciplinary Board suspended Foshee, as a result of an agreed-upon disposition, for engaging in misconduct that included commission of a deliberately wrongful act reflecting adversely on the lawyer’s fitness, dishonesty, charging an unreasonable fee, failure to explain a contingent fee, unauthorized practice of law, failure to provide competent representation, failure to act promptly, failure to keep a client reasonably informed, intentional failure to seek a client’s objectives, neglect, and intentionally prejudicing or damaging a client, while retained to represent a client in a personal injury matter.

In re David A. Jones. Bar No. 223933. May 4, 2006. In a reciprocal matter from Pennsylvania, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Jones. For purposes of reinstatement, Jones’s disbarment shall run from November 8, 1999. The Supreme Court of Pennsylvania disbarred Jones for making unmeritorious claims and contentions, knowingly making false statements to a tribunal, dishonesty, and misconduct prejudicial to the administration of justice.

In re George E. Kersey. Bar No. 344499. April 27, 2006. In a reciprocal matter from New Hampshire, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Kersey. The Supreme Court of New Hampshire disbarred Kersey for knowingly disobeying its orders to hand over his files and for practicing law while suspended.

In re Leslie Wayne Lickstein. Bar No. 272062. May 4, 2006. In a reciprocal matter from the bankruptcy court, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Lickstein for five years, with reinstatement conditioned on fitness and compliance with the bankruptcy court’s order of disgorgement. In a bankruptcy court settlement Lickstein stipulated to a series of facts that reveal a pattern of deceptive conduct. The bankruptcy court conditioned Lickstein’s reinstatement on his disgorgement of $39,297.06 in legal fees.

In re Robert E. Miller. Bar No. 465792. April 20, 2006. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Miller for six months with fitness. The Supreme Court of Florida’s sanction was based on stipulated facts that showed that Miller, made co-trustee of an estate, had engaged in misconduct including failure to deposit certain insurance proceeds into a segregated escrow account and failure to ensure that his co-trustee properly and prudently used trust monies for the benefit of the children of the settlor, who later died.

In re Michael R. Scinto. Bar No. 442806. April 13, 2006. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and publicly censured Scinto. The Supreme Court of New Jersey reprimanded Scinto for filing false statements with the Hoboken Rent Control Office in order to obtain illegal rents.

In re David M. Zolensky. Bar No. 379790. April 13, 2006. In a reciprocal matter from Tennessee, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Zolensky for 30 days. Zolensky was suspended for 30 days in Tennessee and agreed to pay costs of $276, for practicing law while suspended for failing to comply with continuing legal education requirements.

Informal Admonitions Issued by the Office of Bar Counsel
In re Claude O. Barrington. Bar No. 370477. April 19, 2006. Bar Counsel issued Barrington an informal admonition for accepting a fee while serving as counsel for the personal representatives. Barrington received the fee from the estate’s assets before the period for the filing of claims had expired and without seeking and obtaining authorization from the probate court. Rules 1.1(a), 1.5(a), and 8.4(d).

In re Harvey Kirk. Bar No. 425174. May 5, 2006. Bar Counsel issued Kirk an informal admonition for failing to notify and deliver promptly to a third party settlement funds that the party was entitled to and failing to train and supervise adequately nonlawyer employees within his firm. Rules 1.15(a), 5.3(a), and 5.3(b).

In re B. Donovan Picard. Bar No. 923524. January 26, 2006. Bar Counsel issued Picard an informal admonition for representing a client, albeit in a separate legal matter, whose interests were in conflict with the positions of other firm clients on the same legal issue pending before the same court, without first gaining the informed consent of both sets of clients. Rule 1.7(b).

In re Barbara A. Rice. Bar No. 452627. April 19, 2006. Bar Counsel issued Rice an informal admonition for failing to respond to the opposing parties’ post-trial motion for judgment in a landlord–tenant matter, resulting in the court’s granting the opposing parties’ posttrial motion notwithstanding a jury verdict in favor of Rice’s client. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), and 1.16(a).

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’s Web site at www.dcbar.org/for_lawyers/ethics/discipline/index.cfm. 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.dcappeals.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 memberservices@dcbar.org.