Washington Lawyer

Bar Counsel: Older Than Dirt

From Washington Lawyer, July/August 2007

By Gene Shipp

Illustration by Mick Wiggins

I recently passed one of those milestone birthdays (60 years old), and upon reflection, I decided I am now older than dirt. A lot of people in the office agreed. The week before my birthday, I was in Chicago at the American Bar Association Center for Professional Responsibility’s 33rd national conference, and an interesting report came to my attention. It is the report of the Joint Committee on Aging Lawyers, issued May 2007.[1] What a timely report.

This report was a result of the collaborative work of the National Organization of Bar Counsel (NOBC) and the Association of Professional Responsibility Lawyers (APRL), and I might add, the first time these natural opponents have worked together on a project. The report was an undertaking based upon the fact that lawyers are getting older and staying at the practice longer. The report observes:

  1. The steady increase in the past 50 years in the number of lawyers admitted to practice each year;
  2. The demographic shift in the elderly population;
  3. The dramatic improvements in health care, which have extended professional working lives;
  4. The strong desire among many senior lawyers to continue making positive contributions to society; and
  5. Economic necessity, which will compel lawyers to continue working because their pensions or savings are insufficient to support themselves and their families.

The report goes on to conclude that “current rules and procedures … are not well suited … to protect the dignity of those senior lawyers who suffer from age related changes in their professional abilities,” and it is “the clients who are likely to suffer adverse consequences when an age related impairment significantly affects their lawyer’s ability to continue in active law practice.” One of the more interesting observations in the report is that lawyers may not recognize their limitations, and even when the firm or colleagues intervene, the result may be an age-impaired attorney becoming a solo practitioner, which can be a very dangerous venture.

The report recommends:

  1. Make a demographic assessment of the bar. This will assist the jurisdiction in forecasting the types of programs, services, and resources that may be needed.
  2. Take steps to identify lawyers with age-related impairments. This may be information that our office should start to collect on attorneys with age-related impairments, including the types of practice and the types of misconduct alleged (i.e., neglect).
  3. Encourage each lawyer to have a law practice transfer plan in case of incapacity or death. The recommendation calls upon bar associations and disciplinary agencies not only to have rules to pick up the pieces when a senior lawyer passes away or becomes incapacitated, but also to train each lawyer on having advance provisions for devastating contingencies to protect their clients.[2]
  4. Encourage and support senior lawyers in their practice. There are a number of thoughtful steps recommended in the report to make leaving the practice an honor rather than the loss of identity.
  5. Involve senior lawyers as mentors and in pro bono work. The District of Columbia Bar is working very hard in this area. I know that the Bar’s leadership and pro bono staff have made great strides, and it sure seems like a win-win situation. The wonderful knowledge and talents of senior lawyers should not go to waste.[3]
  6. Develop continuing legal education (CLE) programs on senior lawyer issues. One suggestion that I think is terrific comes under this category: “Bar associations should take the lead and provide courses that assist senior lawyers in making successful transitions to new practice areas. A senior lawyer who is no longer able to keep up with the superhuman demands of an active trial practice, may wish to get involved in working as a mediator or advisor. Tailored CLE courses could assist in enhancing the ability of capable senior lawyers to remain active.”[4]
  7. Finally, the recommendation that would affect our office the most is that discipline needs to respond appropriately to age-impaired lawyers. To put this bluntly, it is no notch on our belts to disbar an 80-year-old attorney with a clean disciplinary history because we have no choice or no discretion. The report recommends the use of lawyer assistance programs or reports of discipline to intervene, and it recommends the discipline system should think about the procedures that protect the public and are fair to all involved. The issue of “voluntary permanent” retirement, such as “voluntary dignified exit,” would be best for all and save countless hours and resources for this office.

After 34 years of litigation practice, I appreciate the report and the tough issues the committee sought to address. This is an opportunity for the Bar to pause and reflect on the issue as a whole, and I urge it be considered.

Notes
[1] The Report may be found on the NOBC’s Web site at www.nobc.org/nobc-aprl.pdf.
[2] District of Columbia Bar Rule XI, § 15(a) provides for appointment of an attorney to assist in the closing of a practice “If an attorney dies, disappears, or is suspended for incapacity or disability, and there is no partner, associate, or other responsible attorney capable of conducting the attorney’s affairs…” This proviso only comes into play when there is no other attorney available to handle the attorney’s affairs.
[3] For more information on the D.C. Bar Senior Lawyer Public Interest Project, visit the D.C. Bar’s Web site at www.dcbar.org/for_lawyers/pro_bono/
senior_lawyer_public_interest_project/index.cfm. See also James J. Sandman’s Washington Lawyer column of July/August 2006, in which he discusses the importance of a pro bono program that matches up lawyers later in their career with younger lawyers in a pro bono setting.
[4] NOBC-APRL Joint Committee on Aging Lawyers Final Report, May 2007. 16.

Disciplinary Actions Taken by the
Board on Professional Responsibility

Original Matters
In re Samuel R. Berger. Bar No. 167452. May 11, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Berger by consent.

In re I. Lewis Libby Jr. Bar No. 950758. May 14, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Libby. Libby was found guilty by a jury in the United States District Court for the District of Columbia of one count of obstruction of justice, in violation of 18 U.S.C. ‘ 1503; one count of making false statements to the Federal Bureau of Investigation, in violation of 18 U.S.C. ‘ 1001(a)(2); and two counts of perjury, in violation of 18 U.S.C. ‘ 1623. The court already has determined that obstruction of justice and perjury are crimes that involve moral turpitude per se, for which disbarment is mandatory.

In re Meldon S. Hollis. Bar No. 379671. May 25, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals deny Hollis’s petition for reinstatement.

In re John C. Pasierb. Bar No. 414458. May 11, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Pasierb by consent.

Reciprocal Matters
In re Richard J. Dobbyn. Bar No. 432609. May 15, 2007. In three consolidated reciprocal matters from Texas, the Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Dobbyn. In Texas, Dobbyn was twice suspended on consent for misconduct including neglect; failure to communicate; conduct involving dishonesty, fraud, deceit, or misrepresentation; and violation of rules governing safekeeping of property. Dobbyn was subsequently disbarred by default in Texas for misconduct including misappropriation of entrusted funds, neglect of client matters, failing to inform a client of deposition and court dates, failing to appear at court hearings, purporting to enter into a settlement obliging his client to pay $198,000 without client authority and without informing the client of the settlement offer, failing to deliver client files after the end of a representation, misrepresenting the status of a case on multiple occasions, and failing to inform a client of the dismissal of her case.

In re Edwin G. Drake. Bar No. 434136. May 25, 2007. In a reciprocal matter from Florida, the Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Drake, with reinstatement conditioned upon the additional terms imposed by the Supreme Court of Florida’s order of disbarment, including payment of restitution. Drake violated some 26 Florida disciplinary rules in the course of his representation of six clients. Drake misappropriated client funds, failed to maintain minimum required trust account records, failed to utilize minimum trust account record-keeping procedures, failed to communicate with clients, abandoned his practice, and refused to respond to investigative inquiries of the Florida Bar.

In re John O. Iweanoge Jr. Bar No. 439913. April 6, 2007. The Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally equivalent reciprocal discipline and publicly censure Iweanoge. The Court of Appeals of Maryland reprimanded Iweanoge based upon a joint petition for reprimand by consent stemming from his representation of three clients. In the first case, Iweanoge failed to appear in court for a trial date and failed to inform his client that she needed to appear in court. In the second case, Iweanoge failed to thoroughly prepare his client’s landlord–tenant case and failed to obtain service on the defendant for four years after the case was originally filed and after his withdrawal as counsel, without informing his client. In the third case, Iweanoge failed to appear at a court hearing, resulting in an entry of judgment against his client.

In re Peter H. Jacoby. Bar No. 285692. May 11, 2007. In this reciprocal matter, the Board on Professional Responsibility determined that respondent’s act of domestic violence warranted substantially different discipline in the District of Columbia than the censure imposed by the Supreme Court of New Jersey. The board recommends that the D.C. Court of Appeals suspend Jacoby for 60 days.

In re Malcolm B. Wittenberg. Bar No. 187674. May 2, 2007. In a reciprocal matter from Virginia, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally equivalent reciprocal discipline and disbar Wittenberg, effective immediately. The Virginia State Bar Disciplinary Board revoked Wittenberg’s license to practice law based on his criminal conviction in 2001 on charges of securities fraud in the Federal District Court in San Francisco.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
In re Brian O. Godette. Bar No. 433283. April 5, 2007. The D.C. Court of Appeals recommends suspending Godette for 30 days and remands this matter to the Board on Professional Responsibility to consider whether, as a further condition of reinstatement, Godette should be required to prove his fitness to practice law. Godette failed to cooperate with Bar Counsel’s investigation and failed to comply with a board order compelling a response. One judge dissented stating the court should adopt the board’s recommendation of 30 days, with conditions. Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re Kenneth L. Hall. Bar No. 421407. April 5, 2007. In a reciprocal matter from Nevada, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Hall for 40 days, nunc pro tunc, to July 11, 2001. The Supreme Court of Nevada based its sanction on Hallguilty plea to gross misdemeanor child abuse and neglect.

In re Leonard W. Krouner. Bar No. 190165. April 12, 2007. The D.C. Court of Appeals disbarred Krouner, nunc pro tunc, to May 23, 2003. Krouner was found guilty in the Supreme Court of New York, Albany County, of one count of insurance fraud in the third degree, in violation of New York Penal Law ‘ 176.20; one count of grand larceny in the fourth degree, in violation of New York Penal Law ‘ 155.30(1); and one count of workers= compensation fraudulent practices, in violation of New York Workers’ Comp. Law ‘ 114(1), crimes that involved moral turpitude per se, for which disbarment is mandatory.

In re N. Frank Wiggins. Bar No. 194076. April 26, 2007. The D.C. Court of Appeals suspended Wiggins for 60 days, with 30 days stayed, and placed him on probation for one year, during which time he would be required to complete a continuing legal education course in legal ethics. Wiggins advised another lawyer that she could conceal from that lawyer=s clients that their personal injury case had not been accepted for filing prior to the expiration of the statute of limitations, and that she could pay the clients from her own funds without disclosure that she was doing so and thus lead them to believe that the case had settled and that payment was from the defendant’s insurer. Rules 1.1(a), 1.2(e), 8.4(a), and 8.4(c). (Opinion was issued in conjunction with In re Jill Johnson Pennington.)

Reciprocal Matters
In re Marc A. Calello. Bar No. 450262. April 19, 2007. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Calello for three months, nunc pro tunc, to October 19, 2006. The Supreme Court of New Jersey suspended Calello for violating New Jersey Rules of Professional Conduct pertaining to scope of representation, failure to communicate with client, improper contingent fee agreements, conflict of interest, commingling, failure to notify client or third party of receipt of funds in which they have an interest, and requiring separate maintenance of funds in which multiple parties have and interest.

In re John O. Iweanoge Jr. Bar No. 439913. April 6, 2007. In a consolidated reciprocal matter from Maryland and Virginia, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and publicly censured Iweanoge. The Circuit Court for Arlington County, Virginia, publicly reprimanded Iweanoge for engaging in a pattern of conduct whereby he authorized a nonlawyer employee to sign pleadings and endorse orders. The Maryland court publicly censured Iweanoge for violating Maryland Rules of Professional Conduct stemming from representation of three clients.

In re Chirayu A. Patel. Bar No. 460469. May 17, 2007. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed substantially different discipline and suspended Patel for six months, effective immediately. The Supreme Court of New Jersey reprimanded Patel for negligent misappropriation of client trust funds and failure to comply with record-keeping requirements.

In re Jill Johnson Pennington. Bar No. 362592. April 26, 2007. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed nonidentical reciprocal discipline and suspended Pennington for two years with fitness, nunc pro tunc, to September 13, 2005. The Maryland Court of Appeals disbarred Pennington based upon a finding of “misrepresentation[s]” and “deceitful conduct.” While retained to represent clients in a personal injury matter, Pennington failed to advise the clients that due to an error that occurred with the filing of their complaint, it was not properly docketed and that the statute of limitations now barred their claims. Thereafter, Pennington advised the insurer that the case could be dismissed with prejudice. Pennington was incorrectly advised by another lawyer that she could conceal from her clients that their personal injury case had not been accepted for filing and that she could pay the clients from her own funds, without disclosure that she was doing so, and thus lead them to believe that the case had settled and that payment was from the defendant insurer. Pennington violated Maryland Rules 1.2, 1.4, 1.7(b), 1.16(a), 8.4(c), and 8.4(d). (Opinion was issued in conjunction with In re N. Frank Wiggins.)

In re Jeffrey N. Schwartz. Bar No. 462769. May 31, 2007. In a reciprocal matter from Georgia, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Schwartz for 18 months, nunc pro tunc, to October 3, 2006. The Supreme Court of Georgia suspended Schwartz for accessing, listening to, and randomly deleting voicemail messages on the system of his former employer, an Atlanta law firm.

In re Stephen M. Zukoff. Bar No. 365116. May 17, 2007. In a reciprocal matter from Florida, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and publicly censured Zukoff. The Supreme Court of Florida publicly reprimanded Zukoff, with conditions, for violating Florida rules in connection with his representation of clients in a professional malpractice case and tenet eviction case.

Informal Admonitions Issued by the Office of Bar Counsel
In re Desmond P. Brown. Bar No. 427949. March 19, 2007. Bar Counsel issued Brown an informal admonition for failing to provide competent and diligent representation and engaging in conduct that seriously interferes with the administration of justice, while appointed as guardian in three separate matters. Rules 1.1(a), 1.1(b), 1.3(a), and 8.4(d).

In re John H. Dodds. Bar No. 462324. February 9, 2007. Bar Counsel issued Dodds an informal admonition for engaging in the unauthorized practice of law in Arizona and thereby seriously interfering with the administration of justice, while representing a corporation and its owners. Rules 5.5(a) and 8.4(d).

In re Frederick D. Iverson. Bar No. 457180. March 26, 2007. Bar Counsel issued Iverson an informal admonition based on his writing a letter offering his wife a job as an attorney in his firm that she submitted to her prospective employer, and acting as a professional reference for his wife in connection with her application for employment, without disclosing to the prospective employer their marital relationship, which was a material fact he knew the prospective employer did not know. Rule 8.4(c).

In re Jeffrey F. Orchard. Bar No. 439582. March 1, 2007. Bar Counsel issued Orchard an informal admonition for failing to provide competent representation to a client, failing to serve a client with skill and care, failing to represent a client zealously and diligently within the bounds of the law, and failing to keep a client reasonably informed about the status of a matter and promptly comply with requests for information, while appointed by the Superior Court to represent a client’s postconviction interests. Rules 1.1(a), 1.1(b), 1.3(b), and 1.4(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/attorney-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.