Washington Lawyer

Bar Counsel: What the Numbers Show at Office of Bar Counsel

From Washington Lawyer, July/August 2014

By Gene Shipp

Bar Counsel illustration by Mick WigginsWe have been keeping disciplinary statistics on trends for about 15 years. We use this information at our many speaking opportunities and the Mandatory Course on the D.C. Rules of Professional Conduct and District of Columbia Practice. These numbers reflect complaints coming into our office that meet our criteria to investigate. It has been a long time since we wrote a column about what the numbers are telling us.

Type of Law: What type of law was the attorney practicing when engaging in misconduct?
Immigration practice has held the lead for 3 of the past 5 years and has been in first place most of the past decade with 10 percent to 12 percent of our docketed cases. An unscientific explanation offered by some is that the requirement that clients complain to the local disciplinary authorities to file ineffective assistance of counsel claims has driven this number. Immigration law is a very technical field with particularly vulnerable clients, and we are very active in investigating these complaints. We have seen a number of deportation orders withdrawn after our office successfully prosecuted disciplinary complaints against unethical immigration practitioners.

Criminal practice has always been in the top three categories of cases investigated by our office. We see a smaller percentage of these cases today than in the 1980s and 1990s. We attribute this significant reduction to the great strides the criminal defense bar has made in educating its members to better understand their ethical responsibilities.

Personal injury, collection/commercial, and employment law round out the top five.

Type of Misconduct: What type of misconduct was alleged by the complaint?
Neglect of a legal matter has been the top misconduct complaint since I joined this office 33 years ago. Neglect represents between 25 percent and 30 percent of our investigations. Dishonesty is always the second category at 20 percent. Conduct prejudicial to the administration of justice (aka making the judge displeased) and ineffective representation closely follow. Disbursement irregularity (taking the clients’ money) has gone down over the years to only 5 percent of our investigations, but it was a large part of our work when I first arrived at the office. We speculate that this drastic reduction is due to the court’s clear pronouncements to the entire bar that attorneys must treat entrusted funds as inviolate. Failure to understand this basic principle is the leading cause of disbarment in our jurisdiction.

Years admitted to practice and date of birth of the attorney.
Lawyers seem to fall into ethics trouble after practicing between 7 and 16 years. New lawyers are less frequently the subject of complaints. Once every 3 to 5 years, however, our office investigates a new member of the Bar who engages in spectacularly troubling misconduct, such as one new practitioner who received 129 separate complaints from unrelated clients in 2009 and 2010. With regard to age, our office has consistently seen that attorneys receive more complaints in the prime of their careers, between 50 and 65 years of age (currently Baby Boomers).

Types of Practice.
When I arrived at the Office of Bar Counsel, it seemed that our primary focus was on solo practitioners. Today, our numbers are much more diverse as we now have the resources and expertise to investigate areas of the law and conduct that were not possible to review in the beginning. Clients and firms are more willing to bring ethical concerns to our office. This provides our office a wider view of the practice. Last year we investigated: 

Solo/Small Firm  178 46%
Firm  141 36%
Government  23 6%
In House  22 5.7%
Public Interest  6 2%
Other (including academics)  18 4.3%

The most frequent specific complaint we see is immigration lawyers neglecting clients. Strangely, the second most frequent category is dishonesty by lawyers in their personal conduct. This shows that the human condition is still a problem for lawyers. Never forget that the Rules of Professional Conduct apply in private as well as professional life.

The advice we have been giving for years still applies. If you are concerned or anxious about a step you are thinking about taking or a decision you have made, get ethics advice right away. Trust your instincts and don’t try to lawyer your way around these concerns because bad things can happen when you don’t review the rules and your situation.

Gene Shipp serves as bar counsel for the District of Columbia.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters
IN RE OSCAR S. MAYERS JR. Bar No. 407619. May 27, 2014. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Mayers, with restitution in the amount of $1,500 and with interest at the legal rate. While representing a client, Mayers violated Rules 1.15(a) and (d) and 1.16(d) by (1) treating his client’s property as his own, (2) failing to keep adequate records of such property, (3) misappropriating that property when his personal bank account balance fell below the amount held in trust for his client, and (4) failing to return client funds. Mayers violated Rule 1.16(d) by failing to take timely steps to return approximately 1,500 pages of the client’s medical records. Mayers violated Rules 3.3(a)(1) and 8.1(a) in connection with an affidavit he filed pursuant to D.C. Bar R. XI, § 14(g), in which he asserted that he had no clients or client property. Mayers violated D.C. Bar R. XI, § 2(b)(3), and Rules 3.4(c) and 5.5(a) when he failed to comply with any order of the court or the board issued pursuant to D.C. Bar R. XI and represented the client following the court’s order of suspension. Mayers violated Rules 8.4(c) and (d) when he knowingly made a false statement of fact to the court when he filed his false affidavit pursuant to D.C. Bar R. XI, § 14(g). Additionally, during the course of the disciplinary proceeding, Mayers violated Rules 3.4(a) and (c) and 8.4(d) through his conduct in connection with Bar Counsel’s subpoena of his computer hard drive.

Reciprocal Matters
IN RE SHERRYL V.R.S. GOFFER, AKA SHERRYL SNODGRASS CAFFEY. Bar No. 405100. May 27, 2014. In a reciprocal matter from Alabama, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose substantially different reciprocal discipline and suspend Goffer for 90 days with fitness. Two members of the board dissented and were in favor of the identical reciprocal discipline of disbarment.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters
IN RE STANLEY K. FOSHEE. Bar No. 420761. April 3, 2014. The D.C. Court of Appeals granted Foshee’s petition for reinstatement.

IN RE ELLIS S. FRISON JR. Bar No. 478092. April 24, 2014. The D.C. Court of Appeals disbarred Frison, and as a condition of reinstatement, required Frison to prove that he has fully paid the $11,000 ACAB arbitration award rendered in favor of one client, plus interest at the legal rate on that amount beginning to accrue as of August 3, 2009. These matters involve Frison’s representation of clients in two separate matters. While representing a client in an employment matter and in subsequent litigation against the client, Frison violated: Rule 1.1(a) and Rule 1.1(b) (competent representation; skill and care); Rule 1.3(b)(1) (seeking the lawful objectives of his client); Rule 1.3(b)(2) (intentionally prejudicing or damaging his client during the course of the professional relationship); Rule 1.4(a) and Rule 1.4(b) (failing to keep his client reasonably informed about her matters, and failing to explain them as reasonably necessary); Rule 1.6(a) and Rule 1.6(e)(5) (knowingly revealing confidences and/or secrets of his client, and failing to protect them while seeking legal fees from her); Rule 1.16(d) (on termination of his representation, failing to take timely steps to surrender the client’s papers and property to which the client is entitled; to withdraw from all matters in which he was listed as her counsel; and to refund unearned fees); Rule 3.1 (bringing and defending proceedings and/or litigating issues when there was no nonfrivolous basis for doing); Rule 3.2(a) (delaying proceedings solely to harass or maliciously injure his client); Rule 3.3(a)(1) (knowingly making false statements of fact to a tribunal and/or failing to correct such statements); Rule 3.3(a)(4) (knowingly offering false evidence); Rule 3.4(b) (falsifying evidence); Rule 3.4(c) (knowingly disobeying obligations under the rules of a tribunal); Rule 4.4(a) (while representing himself as a client, using means whose purpose was to embarrass, delay, or burden his former client); Rule 8.1(a) (knowingly making false statements of fact in connection with a disciplinary matter); Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); and Rule 8.4(d) (conduct that seriously interferes with the administration of justice).

In a second matter, while representing a client and their minor child in a personal injury matter, Frison violated Rule 3.1 (asserting issues when there was no nonfrivolous basis for doing so); Rule 3.3(a)(1) (knowingly making false statements of fact to a tribunal, and failing to correct such statements); Rule 3.4(b) (falsifying evidence); Rule 8.1(a) (knowingly making false statements of fact in connection with a disciplinary matter); Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation); Rule 8.4(d) (conduct that seriously interferes with the administration of justice).

IN RE DARYL J. HUDSON III. Bar No. 292045. April 24, 2014. The D.C. Courts of Appeals disbarred Hudson. Hudson was convicted in the United States District Court for the District of New Mexico on seven counts of wire fraud, in violation of 18 U.S.C. § 1343, crimes involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a)(2001).

IN RE STEVEN B. KELBER. Bar No. 358515. May 1, 2014. The D.C. Court of Appeals approved a petition for negotiated discipline and suspended Kelber for 60 days, stayed in favor of a one-year period of unsupervised probation, and said probation is conditioned upon Kelber’s not being the subject of a disciplinary complaint that results in a finding that he violated a disciplinary rule of any jurisdiction in which he is licensed. In the event that Kelber does not successfully complete probation, he shall be suspended for 60 days and required to demonstrate fitness to practice law as a condition of reinstatement. The violations stemmed from Kelber’s “inequitable conduct” as counsel for Kaken Pharmaceutical Co., Ltd. in a patent infringement case, and from manufacturing documents as counsel for Genetech in a separate patent interference case before the U.S. Patent and Trademark Office. Specifically, Kelber made false statements and undertook actions that interfered with the administration of justice. Rules 8.4(c) and 8.4(d).

IN RE MICHAEL J. MASON. Bar No. 358684. April 17, 2014. The D.C. Court of Appeals revoked Mason’s reinstatement to the D.C. Bar and reinstated his disbarment.

IN RE YOSHIHIRO SAITO. Bar No. 351973. May 8, 2014. The D.C. Court of Appeals accepted Saito’s petition for negotiated discipline and suspended him for one year for violation of Rule 8.4(c). The violation stemmed from Saito’s representation of an international client and submission of a questionnaire to the U.S. Department of Commerce. Specifically, Saito failed to disclose significant alterations to a sales contract, which he acknowledged the department would view as material facts, and the lack of disclosure tainted the original decision issued in that matter.

IN RE DOUGLAS P. WACHHOLZ. Bar No. 930792. April 17, 2014. The D.C. Court of Appeals disbarred Wachholz by consent.

IN RE JEFFREY R. WILLIAMS. Bar No. 414757. April 17, 2014. The D.C. Court of Appeals disbarred Williams by consent, nunc pro tunc to December 2, 2013.

Reciprocal Matters
IN RE KYLE M. COURTNALL. Bar No. 468109. May 1, 2014. In a reciprocal matter from Virginia, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Courtnall for 15 months. In Virginia, Courtnall was found to have violated ethical rules relating to competence, diligence, communication, conflict of interest, safekeeping property, and protecting clients’ interests upon termination of the representation.

IN RE GEORGE J. GEESING. Bar No. 449222. May 1, 2014. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and suspended Geesing for 90 days, nunc pro tunc to January 2, 2014. In Maryland, Geesing was found to have instructed nonlawyers to sign his name on affidavits and have them falsely notarized in foreclosure proceedings.

IN RE HARVEY M. NUSBAUM. Bar No. 496870. May 1, 2014. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Nusbaum. In Maryland, Nusbaum was found to have engaged in a conspiracy to eliminate competition in municipal tax sales.

IN RE ANN M. OLIVARIUS. Bar No. 429231. May 15, 2014. In a reciprocal matter from New York, the D.C. Court of Appeals imposed functionally equivalent reciprocal discipline and suspended Olivarius for 18 months, nunc pro tunc to November 15, 2012. In addition, Olivarius will be reinstated to the Bar without further proceedings once she demonstrates that she has completed the course for new admittees described in D.C. Bar R. II, § 3. Olivarius’s admission to the practice of law in New York was revoked for making materially false statements and failing to disclose material facts requested in connection with her application for admission.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE PAMELA A. CROCKETT. Bar No. 451219. May 20, 2014. Crockett was suspended on an interim basis based upon discipline imposed in New York.

IN RE JIN-HO CYNN. Bar No. 395450. April 14, 2014. Cynn was suspended on an interim basis based upon discipline imposed in the Circuit Court of the County of Fairfax, Virginia.

IN RE STANLEY E. GREENIDGE. Bar No. 113993. May 20, 2014. Greenidge was suspended on an interim basis based upon discipline imposed in Massachusetts.

IN RE JEFFREY L. KRAIN. Bar No. 326884. May 20, 2014. Krain was suspended on an interim basis based upon discipline imposed in New Jersey.

IN RE LEE E. LANDAU. Bar No. 335505. April 3, 2014. Landau was suspended on an interim basis based upon discipline imposed in the Court of Appeals of Maryland.

IN RE RONALD M. LEVIN. Bar No. 441575. April 3, 2014. Levin was suspended on an interim basis based upon discipline imposed in the Court of Appeals of Maryland.

IN RE KEITH T. MURPHY. Bar No. 374115. April 14, 2014. Murphy was suspended on an interim basis based upon discipline imposed by the Michigan Attorney Discipline Board.

IN RE CHESTER W. NOSAL. Bar No. 167668. May 15, 2014. Nosal was suspended on an interim basis based upon discipline imposed in Illinois.

IN RE PIERCE H. O’DONNELL. Bar No. 168674. May 20, 2014. O’Donnell was suspended on an interim basis based upon discipline imposed in California.

IN RE MARK K. SEIFERT. Bar No. 358827. April 3, 2014. Seifert was suspended on an interim basis based upon discipline imposed in the Superior Court for Wake County, North Carolina.

IN RE ROBERT L. SHIELDS JR. Bar No. 463074. April 14, 2014. Shields was suspended on an interim basis based upon discipline imposed in the Court of Appeals of Maryland.

IN RE SANDY F. THOMAS-BELLAMY. Bar No. 1011060. May 15, 2014. Thomas-Bellamy was suspended on an interim basis based upon discipline imposed in Maryland.

IN RE MICHAEL C. WORSHAM. Bar No. 462830. April 3, 2014. Worsham was suspended on an interim basis based upon discipline imposed in the United States District Court for the District of 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.dcattorneydiscipline.org and search by individual names.

IN RE DENNIS K. BURKE. Bar No. 426619. On April 11, 2014, the Supreme Court of the State of Arizona reprimanded Burke by consent. Burke agreed that his conduct violated Arizona Rules 1.6 (confidentiality of information) and 8.4(c) (dishonesty).

Informal Admonitions Issued by the Office of Bar Counsel
IN RE JAMES W. RUDASILL JR. Bar No. 318113. March 13, 2014. Bar Counsel issued Rudasill an informal admonition. While representing a client in a criminal matter, Rudasill failed to communicate the rate of his fee and the scope of his representation in writing. In addition, Rudasill failed to promptly provide the client file to the client, upon request, after the termination of the representation. Rules 1.5(b) and 1.16(d).
 
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 at www.dcattorneydiscipline.org. 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.dccourts.gov/internet/opinionlocator.jsf.