Washington Lawyer

Bar Counsel: Testing Hoffman

From Washington Lawyer, July/August 2009

By Gene Shipp and Sara Walshe

Illustration by Mick Wiggins

“What is morally wrong, cannot be professionally right…”
—David Hoffman, 1836[1]

Alton Logan sat in jail for 26 years doing time for a murder he did not commit. And for 26 years, the public defenders who represented Andrew Wilson, the true killer, kept hidden their client’s guilt. Only after Wilson died did they reveal the truth, which ultimately led to the release of Logan.

This spring Wilson’s attorneys, Dale Coventry and W. Jamie Kunz, were panelists at the 35th National Conference on Professional Responsibility, which was hosted by the American Bar Association Center for Professional Responsibility. They discussed why they believed it was professionally or ethically right to guard their client’s confidence at the expense of keeping an innocent man in prison, even though many believe what they did was morally wrong.

Coventry and Kunz explained that while they were defending Wilson against charges of killing two Chicago policemen, Logan was charged and ultimately convicted for the murder of a McDonald’s security guard. The attorney for a third man then informed Coventry and Kunz that his client admitted to being an accomplice to the McDonald’s murder, and had fingered Wilson, not Logan, as the triggerman. Coventry and Kunz asked Wilson, who was eventually convicted of murdering the police officers, if this was the truth, and he “gleeful[ly]” responded that it was. What’s more, according to Coventry and Kunz, Wilson was delighted that the government had convicted the wrong man for a crime he committed.[2] Logan was thereafter sentenced to life in prison and spared the death penalty by a 10–2 vote.

Faced with a dilemma as to whether they could reveal what they knew, Coventry and Kunz researched the governing Illinois professional ethics rule, which, they found, did not allow for disclosure to expose a wrongful conviction. After also consulting with an ethics expert, Coventry and Kunz concluded they could not reveal the confidence and, instead, wrote an affidavit which was kept in a lockbox under Coventry’s bed. The affidavit read:

March 17, 1982—I have obtained information through privileged sources that a man named Alton Logan [] who was charged with the fatal shooting of Lloyd Wickliffe at on or about 11 Jan. 82 is in fact not responsible for that shooting that in fact another person was responsible.

[Signed] Dale Coventry

Although they were unable to obtain Wilson’s consent to reveal the confidence during his lifetime, Wilson agreed that upon his death the truth could be told. He died of natural causes while incarcerated in November 2007. Coventry and Kunz then brought forth the affidavit, Logan became a free man, and the rest is, well, history … except that a firestorm of outrage has since rained down upon the two attorneys. At the conference, Coventry revealed that public comments concerning his actions were severe, for example: “Die you sick, evil morally bankrupt scum of the earth,” and “If you rob me of 26 years of my life … [I] kill your children.” Others were less visceral in offering their opinion, but just as certain in adjudging moral wrong.

There are, of course, counterarguments—arguments that not disclosing Logan’s innocence had some moral justification. If criminal defendants knew that defense attorneys felt free to disclose confidences and secrets, it might hinder the criminal bar’s ability to effectively represent them.[3] Further, in this case, any sort of disclosure may have led authorities to Wilson, moving him from a lifetime in a cell block to a short wait on death row.[4]

For many, the first point may seem too academic, especially in light of Logan’s very real suffering, and the second point unpersuasive in that it advocates for the life of a hardened, remorseless criminal over that of an innocent man. Moreover, as reflected in Hoffman’s quote, there is a tendency to assume that abiding by professional ethics is simple: keep your client informed; be diligent in your work; don’t steal. These are all easy principles—they feel “right” at a gut level.

But not all professional decisions are easy, which is part of the reason rules were enacted in the first place. For some attorneys, keeping quiet in a case such as Logan’s may not feel right, but, for better or worse, bright-line rules on confidentiality eliminate uncertainty and foster trust, ensuring that both attorneys and their clients know exactly what they can discuss.[5] The contours of the rules may change over time,[6] but these changes are left to the courts that promulgate the rules, not the individual attorney.

In protecting certain interests, the Rules of Professional Conduct might occasionally allow for outcomes that disappoint, and even dishearten, the masses. But, with few exceptions, D.C. Rule 1.6 (confidentiality of information), like Illinois’, champions unwavering fidelity by an attorney to his client, and this holds true even when such fidelity is enough to make Hoffman queasy.

Gene Shipp is D.C. bar counsel. Sara Walshe is a staff attorney.

Notes
[1] Born in 1784, David Hoffman was an attorney in Maryland. In 1836 he authored Fifty Resolutions in Regard to Professional Deportment, which served as the country’s first set of legal ethics rules. This quote comes from Resolution 33.
[2] Logan had been convicted on questionable eyewitness testimony.
[3] Comment [2] to Rule 1.6 of the D.C. Rules of Professional Conduct states:

The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.

[4] Coventry and Kunz were concerned that if they exposed Wilson’s guilt, even by leaking it anonymously, they would have put his life in jeopardy. They argued that if it was known that Wilson, a man already convicted of killing two policemen, had also killed a security guard, no jury would spare him the death penalty.
[5] At the conference, Kunz emphasized that he appreciated having a bright-line rule, stating, “by golly, I don’t want to have a choice.” He made it clear he would fight any proposed rule change.
[6] Massachusetts has taken the unique step of drawing the line at imprisonment, allowing (but not requiring) its attorneys to disclose client confidences “to prevent the wrongful execution or incarceration of another.” Rule 1.6(b)(1) of the Massachusetts Rules of Professional Conduct.

Disciplinary Actions Taken by the Board on Professional Responsibility Hearing Committees on Negotiated Discipline
IN RE ROBERT W. JOHNSON II. Bar No. 945170. April 7, 2009. The Board on Professional Responsibility’s Hearing Committee Number Seven recommends that the D.C. Court of Appeals accept Johnson’s petition for negotiated discipline and suspend him 30 days for violation of Rule 1.15(c). One member of the committee dissented.

Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
IN RE RONALD M. COHEN. Bar No. 949214. April 23, 2009. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Cohen by consent.

IN RE SAMEER A. DAMRE. Bar No. 481718. April 22, 2009. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Damre by consent.

IN RE DEAIRICH R. HUNTER. Bar No. 459331. April 3, 2009. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Hunter by consent.

IN RE DANIEL S. ORCI JR. Bar No. 943720. April 3, 2009. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Orci for misconduct in three separate matters. Misconduct in the first matter is based on Orci’s activities in connection with his attempted representation of a client who had been found lacking the capacity to form an attorney–client relationship. The second matter related to Orci’s conduct during and after a foreclosure proceeding on a condominium he owned in Virginia. The misconduct includes Orci’s efforts to hinder a duly noticed foreclosure proceeding, filing of frivolous lawsuits, and making false statements to a tribunal. The third matter involved frivolous lawsuits and Bar complaints that Orci filed against family members, and Orci’s attempts to have his mother declared legally incompetent and have himself appointed her guardian and financial conservator in an effort to gain financial advantage. In addition, Orci failed to respond to Bar Counsel’s investigative inquiries and to orders of the board. Rules 1.3(b)(2), 1.7(b)(4), 1.8, 1.16(a)(1), 3.1, 3.2(a), 3.3(a)(1), 3.4(c), 3.5(c), 5.5(a), 8.1(b), 8.4(c), 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

IN RE DAVID H. SAFAVIAN. Bar No. 448540. May 7, 2009. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Safavian. Safavian was convicted in the United States District Court for the District of Columbia of one felony count of obstruction of justice in violation of 18 U.S.C. § 1505, and three felony counts of making false statements in violation of 18 U.S.C. § 1001. Because Safavian’s crime of obstruction of justice involves moral turpitude per se, disbarment is mandatory pursuant to D.C. Code § 11-2503(a).

IN RE LLOYD F. UKWU. Bar No. 420617. May 13, 2009. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Ukwu. While retained to represent a client to pursue a claim for personal injury and property damage arising from an automobile accident, Ukwu failed to communicate with his client about important events in his case, settled his client’s case for $10,000 without authority, and when he received the settlement check payable both to him and his client, forged his client’s endorsement, deposited the check in his operating account, and intentionally misappropriated a substantial portion of the $10,000 for his own use. In addition, during the course of Bar Counsel’s investigation, Ukwu made a false statement of material fact, refused to respond to Bar Counsel’s numerous lawful demands for information, and failed to comply with court and board orders directing him to comply with Bar Counsel’s demands. Rules 1.2(a), 1.4(a), 1.4(b), 1.15(a), 1.15(b), 1.15(c), 1.17(a) (now renumbered 1.19(a)), 8.1(a), 8.1(b), 8.4(b), 8.4(c), 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

Reciprocal Matters
IN RE BINCY Y. ABRAHAM. Bar No. 467279. April 24, 2009. In a reciprocal matter from New Jersey, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally equivalent reciprocal discipline and suspend Abraham three months with fitness, nunc pro tunc, to January 4, 2008. While simultaneously representing a real estate consulting firm and three separate buyers of real estate, Abraham violated the New Jersey Rules of Professional Conduct pertaining to failure to safeguard funds, conflict of interest, allowing a third party to direct and regulate lawyer’s professional judgment in rendering legal services to others, and misrepresentation. In addition, Abraham violated the Rules Governing the Court of the State of New Jersey pertaining to record-keeping violations.

Disciplinary Actions Taken by the District of Columbia Court of Appeals
Original Matters
IN RE BRYAN A. CHAPMAN. Bar No. 439184. May 14, 2009. The D.C. Court of Appeals amended its February 5, 2009, opinion, suspending Chapman 60 days, with 30 days stayed in favor of one year probation within which time Chapman must complete continuing legal education courses on employment discrimination law, federal court procedure, and professional responsibility. The court amended its opinion to clarify that Chapman’s probation is to be supervised.

IN RE PETER J. CINQUEGRANI. Bar No. 396732. April 15, 2009. The D.C. Court of Appeals disbarred Cinquegrani by consent, effective forthwith.

IN RE RONALD M. COHEN. Bar No. 949214. May 28, 2009. The D.C. Court of Appeals disbarred Cohen by consent, effective immediately. The effective date of Cohen’s disbarment shall run, for reinstatement purposes, from October 10, 2008.

IN RE SAMEER A. DAMRE. Bar No. 481718. May 21, 2009. The D.C. Court of Appeals disbarred Damre by consent.

IN RE DEAIRICH R. HUNTER. Bar No. 459331. April 30, 2009. The D.C. Court of Appeals disbarred Hunter by consent.

IN RE TERRI Y. LEA. Bar No. 422762. April 23, 2009. The D.C. Court of Appeals suspended Lea 30 days with fitness and, as a condition for reinstatement, ordered that she respond promptly to Bar Counsel inquiries and the order of the board pertaining to the underlying disciplinary proceeding against her, if she has not already done so as of the date of this opinion. Lea failed to respond to Bar Counsel’s lawful demand for information, and to comply with a board order directing her to do so, as well as engaged in conduct that seriously interfered with the administration of justice. Rules 8.1(b), 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

IN RE LESLIE WAYNE LICKSTEIN. Bar No. 272062. May 28, 2009. The D.C. Court of Appeals disbarred Lickstein based on his conviction of a crime of moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a). Lickstein pled guilty to one count of conspiracy to commit an offense against the United States, specifically bank fraud in violation of 18 U.S.C. §§ 371 and 1344, for his role in a scheme involving mortgage financing.

Reciprocal Matters
IN RE NAZANIN M. NASRI. Bar No. 414007. April 30, 2009. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and disbarred Nasri. The Virginia State Bar Disciplinary Board revoked Nasri’s license to practice law following her guilty plea to conspiracy to commit immigration fraud.

IN RE NAVRON PONDS. Bar No. 306589. May 14, 2009. In a reciprocal matter from the United States District Court for the District of Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Ponds. Pond’s disbarment will run from February 24, 2009.

IN RE MICHAEL W. RYAN JR. Bar No. 469430. April 30, 2009. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Ryan. The Court of Appeals of Maryland disbarred Ryan by consent for misconduct, including misappropriation of entrusted funds.

IN RE ROBERT R. STONE JR. Bar No. 139725. April 15, 2009. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Stone.

Interim Suspensions by the District of Columbia Court of Appeals
IN RE CHANDRESEK MAHINDA BOGOLLAGAMA. Bar No. 418491. May 18, 2009. Bogollagama was suspended on an interim basis based upon discipline imposed in Virginia.

IN RE MICHAEL F. GALLAGHER. Bar No. 404821. May 11, 2009. Gallagher was suspended on an interim basis based upon discipline imposed in Florida.

IN RE BRADLEY DAVID SCHWARTZ. Bar No. 191965. May 18, 2009. Schwartz was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE BADA P. NGUYEN. Bar No. 462080. May 11, 2009. Nguyen was suspended on an interim basis based upon discipline imposed in Virginia.

IN RE THEODORE F. STEVENS. Bar No. 55152. April 13, 2009. Stevens’ interim suspension by the D.C. Court of Appeals was vacated and the matter was dismissed because the United States District Court for the District of Columbia issued an order on April 7, 2009, setting aside a verdict and dismissing Stevens’ indictment with prejudice.

IN RE LOUIS PETER TANKO JR. Bar No. 434000. May 18, 2009. Tanko was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE NATHAN H. WASSER. Bar No. 77297. May 11, 2009. Wasser was suspended on an interim basis based upon discipline imposed in Maryland.

Disciplinary Actions Taken by Other Jurisdictions
In accordance with D.C. Bar Rule XI, § 11(c), the D.C. Court of Appeals has ordered public notice of the following nonsuspensory and nonprobationary disciplinary sanctions imposed on D.C. attorneys by other jurisdictions. To obtain copies of these decisions, visit www.dcbar.org/discipline and search by individual names.

IN RE NDUKWE AZUEWAH. Bar No. 454478. On March 23, 2009, the Attorney Grievance Commission of Maryland reprimanded Azuewah.

IN RE HOWARD NORMAN BIERMAN. Bar No. 431099. On April 15, 2009, the Virginia State Bar’s Fourth District Subcommittee publicly admonished Bierman.

IN RE DWAYNE L. GARRETT. Bar No. 342170. On May 4, 2009, the Attorney Grievance Commission of Maryland reprimanded Garrett.

IN RE GLORETTA HANKINS HALL. Bar No. 470833. On March 5, 2009, the Supreme Court of Florida reprimanded Hall.

IN RE RICHARD JAMES OULTON. Bar No. 426174. On September 26, 2008, the Third District Subcommittee of the Virginia State Bar publicly admonished Oulton, with the condition that he cease using certain language in his written fee agreement.

IN RE JONATHAN N. PORTNER. Bar No. 421576. On March 27, 2007, the Attorney Grievance Commission of Maryland reprimanded Portner.

IN RE RUSSELL G. SMALL. Bar No. 428219. On September 28, 2007, the State of Connecticut’s Statewide Grievance Committee reprimanded Small.

Informal Admonitions Issued by the Office of Bar Counsel
IN RE KEVIN F. PATCHA. Bar No. 492892. April 1, 2009. Bar Counsel issued Patcha an informal admonition for deficiently preparing and advocating during a hearing, failing to adequately supervise the work of his former associate with regard to the deficient appellate brief filed on the client’s behalf, failing to ensure that the brief adequately addressed the court’s adverse findings, and failing to review the brief for accuracy while representing a client in an immigration matter. Rules 1.1(a), 1.1(b), 1.3(a), and 5.1(b).

IN RE WILLIAM D. SIMON. Bar No. 296665. April 2, 2009. Bar Counsel issued Simon an informal admonition for failing to file the necessary reports with the District of Columbia government to maintain the client’s status as a professional corporation, and failing to respond to the client’s telephone call and letter concerning the revocation. Rules 1.3 and 1.4.

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/attorney-discipline. 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.