Washington Lawyer

Bar Counsel: These Standards Are Voluntary--and Valid

From Washington Lawyer, July/August 2010

By Joe Perry and Bill Ross

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In a well-known Monty Python sketch, a man walks into an office waiting room and declares that he has come to purchase an “argument.” After handing over the requisite payment for five minutes of argumentation, he takes the first door on his right—room 12—and immediately is berated by a man who apparently has been waiting for him. Our protagonist suffers various verbal indignities before realizing he has walked into the wrong room—the man he is talking to is in charge of doling out abuse, the man responsible for arguing is one office over.[1]

Unfortunately, advocates and abusers are not so neatly separated in the legal world, and many of the former too often fall into the role of the latter. In response to this and other concerns, the D.C. Bar Board of Governors adopted the D.C. Bar Voluntary Standards of Civility in Professional Conduct (the Standards) in 1996.[2] As the name implies, the Standards are voluntary and unenforceable, and, as such, many attorneys may find that their copy of the Standards—a small pamphlet containing a preamble and 50 laudable modes of conduct to aspire to—has somehow been lost in the shuffle.[3] The Office of Bar Counsel, however, would like to extol the virtues of digging out these pamphlets.

First, Bar Counsel notes that professional behavior and ethical practice often are overlapping, not mutually exclusive, concepts. For example, Standard 22 states, in relevant part, that “[d]uring discovery, we will not engage in acrimonious conversations or exchanges with opposing counsel, parties, or witnesses.” Although it sometimes comes as a surprise to our complainants, Bar Counsel generally does not have jurisdiction over nasty verbal exchanges. At some point, however, acrimony in discovery can become obstructionism, and if this happens, the disciplinary system may come into play. Likewise, Standard 31 states, in part, that “we will be punctual and prepared for all court appearances so that all hearings, conferences, and trials may commence on time and proceed efficiently.” Although being five minutes late to a single hearing might not constitute ethical misconduct, showing up an hour late to successive hearings, without adequate explanation, may be a different story. As it is not always easy to pinpoint where rudeness ripens into a violation of the Rules of Professional Conduct, and as it will not be the attorney making the ultimate call if push comes to shove, abiding by the Standards may be the best way for D.C. practitioners to avoid an unwitting slide from nastiness into ethical malfeasance.[4]

There are further benefits to civility. Some lawyers might be quick to dismiss the Standards with the attitude that professionalism has long since left our profession. The response, of course, is that by following the Standards, an attorney can provide inspiration to all those he or she works with, both colleagues and adversaries, thereby doing his or her part to bring a higher standard of conduct to the attorney’s patch of the legal playing field. The hope would then be that such courtesy is contagious, and further that those few who prove immune decide to fake it out of embarrassment.

If, however, the idea of one attorney starting a civility movement is too saccharine for you, Bar Counsel, from its unique perspective, can offer a final reason for compliance with the Standards you may not have considered. Standard 2 states that:

[e]xcept within the bounds of fair argument in pleadings or in formal proceedings, we will not reflect in our conduct, attitude, or demeanor our clients’ ill feelings, if any, toward other participants in the legal process.

At first blush, many attorneys might find naïve the suggestion that they should avoid channeling their client’s negative feelings. Often, their clients may expect them to share their outrage, both behind the scenes and at trial; indeed, their clients are incredulous if they do not.

Fair enough, but sharing a client’s passion does not guarantee a win, and after the dust settles attorneys may find that their client’s “ill feelings” are now focused on a new target. What a client once viewed as an attorney’s righteous indignation may now be seen as behavior that prejudiced a judge, submarined negotiations, or otherwise destroyed the client’s case. Oddly enough, such ill-feeling clients often find their way to Bar Counsel, and occasionally the stories they tell necessitate a formal investigation. Ultimately, Bar Counsel may dismiss the matter, but consider a trip to the dentist that ends with you being told you do not have any cavities—it may be a proud moment, but the announcement only comes after you have been poked and prodded with metal instruments.

In sum, the difference between uncivil and unethical conduct can often be a matter of degree rather than kind, and following the Standards can help you avoid crossing what is a sometimes fuzzy line. Further, playing nice can help combat negative perceptions of the profession, if not save you a hassle. Simply put, it makes good sense for attorneys to practice civilly, and leave the abuse to the man in room 12.

Bill Ross is an assistant bar counsel and Joe Perry is a senior staff attorney in the Office of Bar Counsel.

Notes
[1] To avoid future disasters, District of Columbia attorneys are advised to proceed to room 12A, not 12. For more information, feel free to search for “Argument Clinic” at www.youtube.com.
[2] As amended March 11, 1997. The preamble to the Standards states, inter alia:

Incivility to opposing counsel, adverse parties, judges, court personnel, and other participants in the legal process demeans the legal profession, undermines the administration of justice, and diminishes respect for both the legal process and the results of our system of justice.

[3] The Standards are regularly distributed at the Mandatory Course on the D.C. Rules of Professional Conduct and District of Columbia Practice for new D.C. Bar members. For those who have lost their copy or who are anxious to make opposing counsel aware that the Standards exist, the pamphlet is available on the Bar’s Web site.
[4] Bar Counsel notes that some of the Standards appear to proscribe no more than the Rules themselves. For example, Standard 46 states:

We will not knowingly misrepresent or mischaracterize facts or authorities or affirmatively mislead another party or its counsel in negotiations.

Bar Counsel cannot envision a scenario where a violation of Standard 46 would not also constitute a violation of Rule 8.4(c).

Disciplinary Actions Taken by the Board on Professional Responsibility

Hearing Committees on Negotiated Discipline
IN RE MOHAMED SADU BAH. Bar No. 455733. May 17, 2010. The Board on Professional Responsibility Hearing Committee Number Six recommends that the D.C. Court of Appeals accept Bah’s petition for negotiated disposition for a 30-day suspension, with the suspension stayed, followed by a one-year period of supervised probation, with conditions agreed to by Bar Counsel and the respondent for violations of Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c), 1.4(a), 1.4(b), and 1.5(b).

IN RE THOMAS MOOERS. Bar No. 429538. April 30, 2010. This matter came to Hearing Committee Number Six pursuant to an order of March 1, 2010, from the D.C. Court of Appeals directing that the Board on Professional Responsibility assign the matter to a Hearing Committee to determine whether Mooers violated the terms of his probation and, if so, whether probation should be revoked rather than extended. Hearing Committee Number Six concluded that Mooers had violated a condition of his probation and that probation, should be extended rather than revoked. Further, the Hearing Committee concluded that Mooers should be required to continue with his psychiatric treatment and submission of reports and notifications to the board and Bar Counsel, as well as to comply with an additional condition if he resumes the practice of law.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE STEPHEN B. COHEN. Bar No. 182303. April 21, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Cohen by consent. The disbarment should commence, for reinstatement purposes, on June 27, 2008, the date Cohen filed an affidavit in compliance with D.C. Bar Rule XI, § 14(g).

IN RE MICHAEL J. RIGAS. Bar No. 317909. May 28, 2010. The Board on Professional Responsibility recommends that the D.C. Court of Appeals adopt Rigas’ amended petition for negotiated disposition and suspend him for one year, nunc pro tunc to January 28, 2007. The negotiated discipline results from Rigas’ plea of guilty in 2005 to a single misdemeanor violation of Section 220(e) of the Communications Act of 1934 (47 U.S.C. § 151, et seq.) (willfully making a false entry in a corporate record required to be maintained). Rules 8.4(b) and 8.4(c) and D.C. Bar R. XI, § 10(d). Four board members joined in filing a separate statement.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
IN RE STEPHEN B. COHEN. Bar No. 182303. May 6, 2010. The D.C. Court of Appeals disbarred Cohen by consent, nunc pro tunc to June 27, 2008.

IN RE SAMUEL GEN. Bar No. 448638. April 1, 2010. The D.C. Court of Appeals disbarred Gen by consent, nunc pro tunc to December 15, 2005.

Reciprocal Matters
IN RE BARBARA L. BRACKETT. Bar No. 445457. April 1, 2010. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Brackett for 30 days. The Virginia State Bar Disciplinary Board found that Brackett had knowingly written a bad check.

IN RE SEAN K. HORNBECK. Bar No. 460597. May 20, 2010. In a reciprocal matter from Tennessee, the D.C. Court of Appeals indefinitely suspended Hornbeck. The Tennessee Supreme Court placed Hornbeck on disability inactive status.

IN RE CHRISTOPHER D. MATCHETT. Bar No. 423355. May 27, 2010. In a reciprocal matter from Louisiana, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Matchett for two years, with reinstatement conditioned upon Matchett’s full satisfaction of the conditions imposed pursuant to his Louisiana suspension and proof of his fitness to practice law.

IN RE VICTOR MBA-JONAS. Bar No. 452042. April 29, 2010. This is a consolidated matter based on two reciprocal cases from Maryland. In Mba-Jonas I, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and suspended Mba-Jonas for 90 days with fitness, nunc pro tunc to March 3, 2010. The Court of Appeals of Maryland indefinitely suspended Mba-Jonas with the right to apply for readmission in 90 days. The Maryland Court found that Mba-Jonas failed to use funds for the benefit of the person intended, and that he engaged in conduct prejudicial to the administration of justice, the manner by which he handled his escrow account. In Mba-Jonas II, the court suspended Mba-Jonas for six months with fitness, nunc pro tunc to January 7, 2008. The Court of Appeals of Maryland found that Mba-Jonas had violated rules related to handling entrusted funds and recordkeeping, and that he had engaged in conduct prejudicial to the administration of justice. The Maryland Court continued a previous indefinite suspension and postponed Mba-Jonas’ right to apply for readmission in Maryland for an additional six months.

IN RE JOHN M. SHARP. Bar No. 475957. May 20, 2010. In a reciprocal matter from Louisiana, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Sharp.

IN RE JOHN J. ZODROW. Bar No. 444703. May 20, 2010. In a reciprocal matter from Colorado, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Zodrow for one year and one day with fitness, nunc pro tunc to March 29, 2010. In addition, reinstatement is also conditioned upon satisfaction of the requirements imposed in Colorado.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE CLAUDE A. ALLEN. Bar No. 433601. May 13, 2010. Allen was suspended on an interim basis pursuant to D.C. Bar Rule XI, § 9(g), pending final action on the Board on Professional Responsibility’s March 9, 2010, recommendation of a one-year suspension with reinstatement conditioned on his having made restitution, with interest as appropriate, to Target Corporation.

IN RE ANDREW J. KLINE. Bar No. 358547. March 30, 2010. Kline was suspended on an interim basis pursuant to D.C. Bar Rule XI, § 9(g), pending final action on the Board on Professional Responsibility’s December 22, 2009, recommendation of a suspension for a period of 18 months, with the suspension stayed after nine months, on condition that he agree to be placed on monitored probation for a period of two years with conditions. On April 22, 2010, the court ordered that Kline’s interim suspension begin on June 1, 2010.

IN RE STEVEN J. ROZAN. Bar No. 209262. April 2, 2010. Rozan was suspended on an interim basis based upon discipline imposed in Texas.

IN RE THEODORE S. SILVA JR. Bar No. 412894. May 21, 2010. Silva was suspended on an interim basis pursuant to D.C. Bar Rule XI, § 9(g), pending final action on the Board on Professional Responsibility’s December 31, 2009, recommendation of a three-year suspension with fitness.

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 ANTHONY CHUMA IFEDIBA. Bar No. 482108. On October 30, 2009, the Alabama State Bar Disciplinary Commission publicly reprimanded Ifediba.

IN RE OSEI KWASI PREMPEH. Bar No. 488146. On March 5, 2009, the Supreme Court of Florida admonished Prempeh.

Informal Admonitions Issued by the Office of Bar Counsel

IN RE ROBERT W. KING. Bar No. 922575. May 14, 2010. Bar Counsel issued King an informal admonition for failure to forward the client’s file to the client’s appellate attorney in a criminal matter in a timely manner. Rule 1.16(d).

IN RE TRAVIS A. MURRELL. Bar No. 228940. May 14, 2010. Bar Counsel issued Murrell an informal admonition for failing to competently, diligently, and zealously represent a client; failing to take any substantive steps to achieve the client’s lawful objective; and failing to keep the client reasonably informed about the status of the case while retained to represent the client in a family matter. Rules 1.1, 1.3(a), 1.3(b)(1), and 1.4(a).

IN RE KOLADE OYEWOLE. Bar No. 490968. May 14, 2010. Bar Counsel issued Oyewole an informal admonition for failure to respond to court notices or file a brief in a client’s criminal appeal case, resulting in the case being dismissed. In addition, Oyewole failed to communicate and to provide a writing stating the scope of representation or the rate or basis of the legal fee. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(2), 1.3(c), 1.4(b), and 1.5(b).

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. 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 August 1998. To obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/
opinions_mojs.jsp
.