Washington Lawyer

Bar Counsel: Self–Regulation and the Reasons to Report

From Washington Lawyer, July/August 2008

By Gene Shipp

barcounsel Prosecutorial misconduct and judicial response to lawyer misconduct were featured items on the agenda at the recent national conference of the American Bar Association Center for Professional Responsibility in Boston.

These discussions made me think about the broader issue of reporting misconduct, and how cases and complaints flow into the Office of Bar Counsel. So I made a list of why everyone (I mean everyone!) should report misconduct when they see it.

  1. The District of Columbia Rules of Professional Conduct Require It. Rule 8.3 (Reporting Professional Misconduct), which is commonly known as the “snitch rule,” states:
    1. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
    2. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.
    3. This rule does not require disclosure of information otherwise protected by Rule 1.6 (regarding the Confidentiality of Information) or other law.
      While this sets out the compulsory reporting requirement of each member of the District of Columbia Bar, it seems to me that lawyers and judges ought to consider Rule 8.3 as a starting point rather than the last word on their obligation to report.

  2. Self-Regulation Requires It.

    Comment 1 to Rule 8.3 states:

    Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

    This comment nicely frames the bigger picture. If we are to be a self-regulating profession, then we must take the job seriously. If we falter or fail in our duties, then there are forces which could easily be attracted to taking over our responsibility.

    The second part of the comment relating to a pattern of misconduct particularly resonates with the Office of Bar Counsel. We know that misconduct observed by an individual often is only the tip of the iceberg, and a single report can help us uncover many clients who may have been similarly hurt by that attorney’s misconduct.

    Equally important is that, under the recent amendments to District of Columbia Bar Rule XI (Disciplinary Proceedings), we are entering the era of negotiated dispositions. This means that even more than ever before, the Office of Bar Counsel will be evaluating cases for more than just potential prosecution. We will have the discretion and additional tools to deal more effectively with attorney misconduct, no matter how minor. Corrective action, education, or counseling at an early stage will allow us to buff up an errant attorney so the disciplinary system will be more likely to see him or her only once, as opposed to a lifetime process of progressively more severe discipline.

  3. Culture of the Practice of Law Needs to Require It. I just read the American Bar Association-Bureau of National Affairs, Inc., or ABA-BNA, summaries of the sessions from the national conference in Boston. Here is a passage from those summaries, which includes my quotes:

    It’s all about creating a cultural understanding that nobody is above the law, said audience member Wallace E. Shipp Jr. According to Shipp, his office reads all District of Columbia court opinions, investigates all prisoner complaints, and talks to all the new judges, telling them that ‘you can notify us informally, and we’ll do the rest.’

    Here is another passage from the summaries:

    Judges should not be reluctant to communicate with Bar Counsel, suggested Wallace E. Shipp Jr. Shipp pointed out that most Bar Counsel have far more remedies available for unethical misconduct and more devices available short of public discipline than federal judges have—diversion programs for example. But those devices cannot be used, Shipp advised, until judges start informing Bar Counsel more routinely of lawyer behavior for which these remedies may be suited.

    This is what you get for speaking out at a conference. My concern was the feeling that defense attorneys are afraid to make reports, and judges do not want to make, do not like to make, and do not feel responsible to make reports to the Office of Bar Counsel. We need a culture that says lawyers are obligated by rule and moral considerations alike in policing our own profession. We need a culture where defense attorneys are not afraid to report prosecutorial misconduct for fear that the prosecutor’s office will retaliate against their clients. We need a culture where judges pick up the telephone and call our office to discuss the misconduct they have observed.

  4. You Can Save a Life. I can remember at least two occasions where we learned about problems too late. In those cases, although the attorneys were finally reported to us for alcohol abuse, they died before we could take significant action to intervene. In each instance, I deeply regretted that we were not brought in sooner. Both attorneys had solid, successful careers, but they died too soon.

    If you know of someone who suffers from addiction or mental health issues, please contact the District of Columbia Bar Lawyer Assistance Program’s (LAP) private number at 202-347-3131 or the Office of Bar Counsel at 202-638-1501. LAP is an expert at handling such matters and will know what to do, even if you don’t. Failing to get involved is not the right answer.

  5. Report What You Have Heard if It Disturbs You, Even if You Do Not Have Personal Knowledge. Sometimes you might hear something that really bothers you, but you think it is none of your business. You can let us know even if you have no personal knowledge of the matter and are not a potential witness. We can undertake the investigation without revealing your identity. Such was the case in In re Nace. The court found:

    On the facts of this matter, there would appear to be no basis for Nace to claim that the informants violated any federal constitutional or statutory right he possesses. Thus, there would appear to be no basis for suit under federal law in the federal courts. Since it appears no action could be maintained against the informants, we see no need for the disclosure of their identities, on the facts of this case.

    In re Nace, 490 A.2d. 1120, 1124 (D.C. 1985)

    The Office of Bar Counsel needs to know when an attorney is not performing up to the ethical standards of the profession. We need to know when an attorney is abusing alcohol or drugs, or suffering from mental health issues. We need to know when any attorney—younger, older, or in between—is floundering.

    We all have a responsibility to the profession and to the public. Keeping the above reasons in mind, we are asking for your help.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
In re Nathan D. Cooper. Bar No. 476936. April 24, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Cooper by consent.

In re Michael J. Mason. Bar No. 358684. April 3, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Mason by consent.

In re Pamela L. Lyles. Bar No. 368523. April 11, 2008. The Board on Professional Responsibility dismissed Lyles’ petition for reinstatement as defective.

In re Leon Swinson. Bar No. 469838. April 4, 2008. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Swinson by consent, effective 30 days after the date of the order.

In re Joyce A. Wilson. Bar No. 386711. April 14, 2008. The Board on Professional Responsibility recommends that the D.C Court of Appeals disbar Wilson. Wilson intentionally misappropriated assets from the estate for which she was a guardian and filed falsified documents with the Probate Court to hide her misdeeds. In addition, Wilson failed to respond to Bar Counsel’s inquiries and failed to comply with a board order compelling her to respond to the allegations in Bar Counsel’s notice of investigation. Rules 1.15(a), 1.16(d), 3.3(a)(1), 8.1(b), 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

Reciprocal Matters
In re Marilla L. Ross. Bar No. 413676. May 30, 2008. In a reciprocal matter from California, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose the functionally identical reciprocal discipline of a two-year suspension with fitness, stayed in favor of a 30-day suspension subject to the conditions imposed in California, effective immediately. If Ross fails to comply with the California conditions and remains suspended for two or more years, reinstatement will be conditioned on fitness. The Supreme Court of California suspended Ross based on her plea of nolo contendere to a violation of California Penal Code Section 148, subdivision (a)(1) (Resisting, Delaying, or Obstructing an Officer).

In re Monica M. Turnbo. Bar No. 434437. April 11, 2008. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Turnbo. The Court of Appeals of Maryland disbarred Turnbo by joint petition for disbarment by consent in which Turnbo acknowledged that, if a hearing were held, sufficient evidence could be produced to sustain allegations she abandoned a client who had retained her to handle a workers’ compensation matter, failed to respond to the Maryland Bar Counsel’s request for information regarding that client, and commingled and misappropriated funds awarded to another client who had retained Turnbo to represent him in a workers’ compensation matter.

In re Rex B. Wingerter. Bar No. 411787. May 27, 2008. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Wingerter. The Court of Appeals of Maryland disbarred Wingerter based on a criminal conviction wherein he pleaded guilty in the United States District Court for the Eastern District of Virginia to misprision of a felony in violation of 18 U.S.C. § 4, defined as the concealment of and the failure to make known the commission of a felony to a judge or other person in civil or military authority under the United States by one having actual knowledge of such commission. Specifically, while employed as in-house counsel for Global Recruitment and Immigration Services, Inc. (GRIS), Wingerter became aware (1) that his signature on various immigration documents was being forged; (2) the signatures of immigrant clients of GRIS were being forged; (3) a light box was being utilized to forge signatures; (4) hundreds of immigration applications were submitted on behalf of Cleaners of America (a client of GRIS), even though Cleaners of America did not have the capacity to hire such large numbers of employees; (5) he was not the attorney of record for the immigrant applicants for Cleaners of America; (6) GRIS was under investigation regarding the submission of immigration applications; (7) GRIS was misinforming its immigrant clients regarding the status of their applications; and (8) GRIS was charging fees to prepare the forged immigration applications. Wingerter “took at least two steps to conceal the crime” of immigration fraud by instructing GRIS employees to insert their initials on the fraudulently created forms to which Wingerter’s signature was forged, but not to do so whenever the immigrant’s or employer’s signature was forged on the document, because of concern that the initials alongside the purported signatures of immigrants or employers would raise suspicion that the signatures were forgeries.

In re Ben J. Zander. Bar No. 436167. May 23, 2008. In a reciprocal matter from New Jersey, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Zander. The Supreme Court of New Jersey disbarred Zander based on a criminal conviction wherein Zander entered a guilty plea in the United States District Court of New Jersey to acting as an accessory after the fact to mail fraud in violation of 18 U.S.C.A. § 3. This felony conviction related to Zander’s involvement in a scheme to defraud health care recipients out of $24 million in insurance coverage, while employed as in-house counsel for a health plan administrator.

Disciplinary Actions Taken by the District of Columbia Court Of Appeals
Original Matters
In re Nathan D. Cooper. Bar No. 476936. May 22, 2008. The D.C. Court of Appeals disbarred Cooper by consent, effective immediately.

In re Ali D. Jafroodi. Bar No. 432899. May 22, 2008. The D.C. Court of Appeals disbarred Jafroodi. Jafroodi entered a guilty plea in Florida and was convicted of a third-degree felony for unlawful distribution of a controlled substance, a crime involving moral turpitude for which disbarment is mandatory under D.C. Code § 11-2503(a).

In re Michael J. Mason. Bar No. 358684. May 8, 2008. The D.C. Court of Appeals disbarred Mason by consent, effective immediately.

In re Leon A. Swinson. Bar No. 469838. May 8, 2008. The D.C. Court of Appeals disbarred Swinson by consent.

In re Scott L. Wiss. Bar No. 437473. May 22, 2008. The D.C. Court of Appeals suspended Wiss for six months, nunc pro tunc, to April 2006. The court reinstated Wiss as the period of suspension has passed. Wiss pleaded guilty to one misdemeanor count of insurance fraud in the fifth degree in violation of N.Y. Penal Law § 176.10.

In re Richard G. Wohltman. Bar No. 309583. May 29, 2008. The D.C. Court of Appeals suspended Wohltman indefinitely based on disability, effective immediately.

Reciprocal Matters
In re Ronald Allen Brown. Bar No. 368880. April 18, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Brown. The Court of Appeals of Maryland disbarred Brown for, among other offenses, misappropriation of client funds.

In re Michael W. Coopet. Bar No. 392884. May 1, 2008. In a reciprocal matter from California, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Coopet for two years, stayed in favor of a nine-month suspension followed by three years probation subject to terms imposed in California, effective immediately. The Supreme Court of California suspended Coopet for failure to comply with all conditions attached to a disciplinary probation and willful disobedience or violation of a court order.

In re Peter H. Jacoby. Bar No. 285692. April 3, 2008. In a reciprocal matter from New Jersey, the D.C. Court of Appeals imposed nonidentical reciprocal discipline and suspended Jacoby for 60 days, effective immediately, and conditioned Jacoby’s reinstatement on his presentation of proof of his attendance of a program for domestic abusers. The New Jersey Supreme Court publicly censured Jacoby based on his acts of domestic violence directed toward his wife. Because a censure is outside of—and substantially different from—the range of sanctions that would be imposed for Jacoby’s act of domestic violence in this jurisdiction, the D.C. Court of Appeals suspended Jacoby for 60 days.

In re Dimone G. Long. Bar No. 492053. May 8, 2008. In a reciprocal matter from Maryland, the D.C. Court of Appeals disbarred Long as reciprocal discipline. The Court of Appeals of Maryland disbarred Long based on a joint petition for disbarment by consent. Long violated Maryland Rules of Professional Conduct pertaining to competence; diligence; communication; fees; declining or terminating employment; Bar admission and disciplinary matters; misconduct; criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; dishonesty; and conduct prejudicial to the administration of justice.

In re Charles E. Whitehurst. Bar No. 257618. April 3, 2008. In a reciprocal matter from Delaware, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and publicly censured Whitehurst. The Supreme Court of Delaware publicly reprimanded Whitehurst, placed him on a two-year probationary period, and imposed other conditions including payment of any applicable taxes, compliance with audits of his firm’s law practice books and records, and cooperation with any future investigation. The sanctions imposed by the Delaware court were the result, primarily, of Whitehurst failing to supervise a nonlawyer responsible for maintenance of his books and records.

In re Daniel S. Wittenberg. Bar No. 441858. April 3, 2008. In a reciprocal matter from Colorado, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Wittenberg for 90 days, stayed for a period of two years probation, subject to the conditions imposed by Colorado. The Supreme Court of Colorado based its stayed suspension on a stipulated agreement wherein Wittenberg admitted to falsely submitting travel expenses to his law firm to be billed to a client. Although the client was never actually billed for the expenses, Wittenberg reported the matter to his firm and self-reported the incident to the Colorado Bar.

Informal Admonitions Issued by the Office of Bar Counsel
In re Leroy M. Fykes. Bar No. 363819. May 7, 2008. Bar Counsel issued Fykes an informal admonition for revealing a confidence or secret of his former client. Fykes had been retained to represent that client in connection with her appointment and service as the personal representative of an estate. Rule 1.6(a)(1).

In re Irena Karpinski. Bar No. 231951. April 24, 2008. Bar Counsel issued Karpinski an informal admonition for failing to provide competent representation, failing to serve the client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters, failing to represent the client zealously and to act with reasonable promptness, failing to keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information, and failing to communicate the rate or basis of the fee in writing while retained to assist a client in a removal proceeding before the Baltimore Immigration Court. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), and 1.5(b).

In re James A. McBain. Bar No. 194480. March 25, 2008. Bar Counsel issued McBain an informal admonition. While retained to represent a client in adjusting her immigration status, McBain failed to review the client file, make the appropriate inquiry, and file adjustment documentation for the client when he received notice that the client’s I-360 petition had been approved, resulting in additional expense and undue anguish to the client. Rules 1.1(a), 1.1(b), and 1.3(c).

The Office of Bar Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Bar Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted on the D.C. Bar Web site at www.dcbar.org/discipline/reports.html. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since mid-1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/ opinions_mojs.jsp.